1. On the preliminary point in referred trial No. 61 and the connected criminal appeals.
Bhashyam Aiyangar, J.
2. These are appeals in Sessions Case No 53 of 1900 before the Sessions Judge of Kurnool Division. The trial of the said case commenced on 23rd August 1900 and closed on 15th October 1900 when judgment was reserved. The judgment was given on 24th October 1900, and the first eight accused in the case were convicted of murder and the ninth of abetment of murder. The trial before the Court of Session was with the aid of two assessors, viz., Gundu Rao and P. Seshiah Chetti, hereinafter referred to as the first and second assessor respectively. The first assessor was allowed by the Judge to go to Gooty to the death-bed of his mother at 2 P.M. on the afternoon of 5th September 1900, and he was also absent on the 6th and 7th September, but the trial proceeded during his absence. There was no trial of the case on Saturday the 8th and Sunday the 9th idem, and it was adjourned to Monday the 10th, on which day the first assessor returned and continued to attend the trial throughout except on 16th, 17th, 18th and 19th September, on each of which days he was allowed to absent himself till 1 P.M. to enable him to perform the daily obsequies of his deceased mother. It appears that all the depositions recorded in his absence were shown to and read by him. It is not contended that there was no sufficient Cause for his absence on the days above-mentioned, and it appears that no objection was raised on either side to the Judge permitting him to absent himself on these days. The Judge in his letter, dated 20th March 1901, further reports that when the first assessor returned 'some doubts were expressed as to the legality of the ' (assessor's)' return and felt by myself, but finally it was decided with the concurrence of both parties, that he might be allowed to return, as the validity of the trial could not be affected in either case, so long as one. assessor was present throughout the trial according to Section 285, Criminal Procedure Code.' The Counsel who represented all the accused in the Sessions Court also appeared in this Court as Counsel for the 2nd accused, the appellant in Appeal No. 874 of 1900, and says that he did not waive his objection though he did not. press it or make any protest after the Judge ruled that the trial could not be affected by the return of the first assessor. The statement of the Counsel made in this Court that he did not waive the objection, must be accepted, though' the Judge might have misunderstood Counsel as concurring in the view of the Judge. It is very much to be regretted that any doubt should have been felt on a point which is so plain and that the first assessor should have been allowed to resume his seat as an assessor instead of the trial proceeding, as it undoubtedly could, with the aid of the remaining assessor alone under Section 285, Clause (1). The Public Prosecutor, who also appeared in the Sessions Court, now admits that the first assessor ought not to have been allowed to resume his seat as assessor. At the conclusion of the trial the Sessions Judge invited the opinion of each assessor and recorded it, viz., that all the accused were guilty, and the Judge concurring in such opinion, convicted the accused. Upon the above facts a preliminary ground has been raised and argued in the above appeals, that the Judge having acted contrary to law in allowing the first assessor to resume his seat as assessor and in inviting and taking into consideration his opinion in deciding the case, the trial ought to be set aside and the conviction quashed,
3. In my opinion, the finding and sentence appealed against is one passed by a court of competent jurisdiction within the meaning of Section 537 of the Criminal Procedure Code, and that the defect in the trial does not affect its validity and is one that can be cured under that section, if the irregularity 'has not in fact occasioned a failure of justice.'
4. The chief contentions raised in support of the preliminary ground are, that assessors are members of the court, that, therefore, the court was illegally constituted from the time when the first assessor was allowed to resume his seat as 'assessor on 10th September, and that, even if assessors are not members of the court, yet, inasmuch as the Sessions Judge invited the opinion of the first assessor when in law he had not the status of an assessor, and decided the case in concurrence with such opinion, the finding and sentence appealed against cannot be regarded in law as one passed by a court of competent jurisdiction. If either of these contentions be well founded, it will go to the root of the case and the result will be that a new trial will have to be ordered. Section 268, Criminal Procedure Code, provides that all trials before a court of Session shall be either by jury or with the aid of assessors. In the latter case it is provided by Section 284 that at least two assessors shall be chosen by the Judge. The next Section 285 provides that if an assessor be prevented from any sufficient cause from attending throughout the trial, the trial shall proceed with, the aid of the remaining assessor or assessors only and that, if all the assessors are so prevented or absent themselves, the proceedings shall be stayed and a new trial shall be held with the aid of fresh assessors.
5. With reference to these provisions, it is conceded that the trial commenced validly with two assessors and that no exception could be taken to the trial of the case including the finding and sentence if the second assessor alone continued as assessor from 2 P.M. on the 5th September when the first assessor departed on leave. The authorities cited simply establish that the trial will be invalid if it commenced really with only one assessor, though nominally there was a second assessor who, by reason of blindness or deafness, was incapable of understanding the proceedings Weir's Crl. Hub, p. 927, 3rd Ed.; Queen Empress v. Bahu Lal I.L.R. 21 A. 106 or if it ended without the last remaining assessor having attended the trial throughout Queen Empress v. Muhammad MahmudKhan I.L.R. 13 A. 337 or if a portion of the trial which consisted in the taking of the additional evidence took place after the discharge of the assessors Queen Empress v. Ram Lal I.L.R. 15 A. 136. The principle of these decisions is that in cases not tried by jury, it is imperative that the judge should commence his trial with the aid of at least two assessors and that at least one of them should continue to attend the trial throughout. This being mandatory, the jurisdiction of the Sessions. Judge to commence the trial and his jurisdiction to continue the trial are dependent upon his choosing at least two assessors to aid him and on the continuation of at least one of them throughout the trial. In other words, the above two requisites are conditions precedent to the exercise of his jurisdiction, and, there-' fore, any finding or sentence passed by a Sessions Judge in contravention of either of these requisites will not be one passed by a court of competent jurisdiction and the defect is not one which can be cured by Section 537 of the Criminal Procedure Code or Section 1G7 of the Evidence Act.
6. In the matter of the petition of Narain Das I.L.R. 1 A. 610 it was held by a single Judge that the acquittal of an accused person, without asking assessors their opinion, was only an irregularity though a serious one and that it could be cured under Sections 283 and 300 of Act X of 1872 corresponding to Section 537 of Act V of 1898. In the view I have already expressed, I need hardly add that I dissent from that decision, and that if a Sessions Judge should decide a case without inviting the opinion of the assessors, he virtually holds the trial without the aid of assessors, and that his finding or sentence cannot be regarded as one passed by a court of competent jurisdiction. Queen v. Matam Mal 22 W.R. 34 and Queen Empress v. Munna Lal I.L.R. 10 A. 414. In the present case there has been no violation of either of the said conditions precedent and the question raised as to the effect of allowing an assessor who absented himself for some time after he had attended a portion of the trial to resume his seat and to give his opinion at the conclusion of the trial is not governed by any direct authority and the case, therefore, being new in the instance ought 'to be governed by the established principles and the analogies which have heretofore prevailed in like cases' (per Willes, J., in the Tagore case, Sup, Vol. Ind. App. at 68; per Lord Wensleydale in Mirehouse v. Rennell 1 Cl. & Fin., 546.
7. I now proceed to consider the principles and the analogies which bear on the question raised in this case. The principles are clearly deducible from the provisions in regard to trial with the aid of assessors as contrasted with the provisions in regard to trials by jury. In the latter case, the trial is by jury before a court of Session and the functions of the two tribunals forming a mixed tribunal are respectively defined in Sections 298 and 299 of the Code of Criminal Procedure.
8. The jury form a tribunal or body with a foreman and the verdict is the verdict of the body, and when there is no unanimity among the members of the body, the opinion of the majority prevails as the verdict of the body. The jurors are sworn after the foreman has been appointed. And after the Judge has finished his charge, the jury may retire to consider their verdict, and if they are not unanimous, the judge may require them to retire for further consideration. If in the course of a trial by jury, any juror unavoidably absents himself, or if it appears that any juror is unable to understand the language in which evidence is given or the language in which it is interpreted, a new juror shall be added or the jury discharged and a new jury chosen. But in either case the trial shall commence anew. But in the case of a trial with the aid of assessors, the assessors do not form a body and each acts and expresses his opinion individually, and the judge is to invite the opinion of each separately and record it. The judge is the sole judge of law and fact and the responsibility of the decision rests only with him, though, in the decision of the case, he is expected to take into consideration the individual opinion of each assessor, and during the trial of the case, he may also consult them on any point in connection with the examination of witnesses or otherwise. The assessors are not to retire for consultation and forming their opinion. In the case of assessors the principle is that the judge should have Before him the individual and the independent opinion of each assessor. Before the enactment of the Criminal Procedure Code, Act X of 1882, the judge had to invite the opinion of the assessors without summing up the evidence to them. The object was to preclude the possibility of the assessors being influenced by the judge in forming or giving their opinion. On this point the Indian Law Commissioners appointed under 16 and 17 Vic. C. 98, Section 22, in their first report accompanying the draft Code which formed the basis of the Criminal Procedure Code of 1861 observed at p. 152 as follows: 'A difference is proposed in the mode of taking the verdict of a jury from that of taking the opinion of the assessors. In the former case, the judge will sum up the evidence for the guidance of the jury and then call for their verdict. In the latter, the judge will call' for the opinions of the assessors without any expression of his own. There is a reasonable apprehension that the native assessor when his own opinion is to be subjected to discussion in open Court is likely to be unduly biased by the opinion of the presiding judge: we have endeavoured to obviate this by the order of procedure which we have described.' But in the Code of 1882, an enabling provision was introduced which is also retained in the present Code empowering the judge to sum up the evidence to assessors before inviting their opinions. In my opinion this provision should be availed of by the judges only in cases where the facts are intricate or complicated and it may therefore be expedient to explain or marshal the same. Even in these cases, the judge should not, as he may do in charging a jury, express his opinion upon any question of fact arising in the case. The contrast between trial by jury and trial with the aid of assessors is that, in the former, the jury is the real tribunal but is aided by the judge, and in certain matters directed by the judge, but in the latter the judge is the sole tribunal aided by each of the assessors.
The tribunal which has to try the case is the judge himself, and the judgment is his and his alone. The assessors who assist the judge take no part in the judgment whatever; they are not responsible for it and have nothing to do with it. They are there for the purpose of assisting the Judge (per Brett, M.R. in In re Beryl 9. P.D. at p. 141).
9. For the above reasons I am decidedly of opinion that assessors do not form members of the Sessions Court and that, therefore, the Sessions Court was not illegally constituted since the first assessor was allowed to resume his seat as assessor. If assessors are members of the Court, and the first assessor acted as a member of the Court after his return though he ceased to be an assessor in the case when once he departed on the 5th September and the case proceeded during his absence, it may be that the finding and sentence cannot be regarded as passed by a Court of competent jurisdiction and the defect could not be cured under Section 537. In the course of argument, it was put to Mr. Adam, Counsel for the appellant in No. 875, whether the finding and the sentence will have to be quashed if the judge had, at the conclusion of the trial, discovered his mistake in having permitted the first assessor to resume his seat as assessor and therefore refrained from inviting his opinion but invited the opinion of the other assessor only and took it into consideration. But for obvious reasons, the learned Counsel did not venture to give a direct answer. The argument that assessors form members of the Court would carry weight, if, the question had arisen under Act VII of 1843 or under the Criminal Procedure Code of 1861; at any rate such argument would have been very plausible under Section 32 of the said Act and under Section 324 of that Code which ran as follows: 'In a trial before the Court of Session not by jury the trial shall be conducted with the aid of two or more assessors as members of the Court.'
10. The phrase 'as members of the Court' disappeared in the corresponding Section 232 of Act X. of 1872 and has not been re-introduced either in the Code of 1882 or in that of 1898.
11. Though assessors do not form members of the Court, yet inasmuch as it is mandatory that the Court should be aided till the conclusion of the trial by at least one assessor attending the trial throughout and giving his opinion, can it be maintained that the second assessor cannot, under the circumstances, be legally regarded as the remaining assessor who validly attended the trial subsequent to the return of the first assessor?
12. This question was not raised or argued. But to my mind that was the only question that required consideration, and it was with reference to that in particular that I have drawn attention to the various provisions of the Code relating to the constitution and the status of jurors and assessors. If assessors like jury act as a body, though when the body is reduced to one the remaining assessor may act alone, the argument that the second assessor cannot be regarded as having legally continued to act as the remaining assessor after he was associated with the first assessor who ought not to have been allowed to resume his seat as assessor and thus the two formed a body, would be conclusive. For in that caste, the opinion given will be not his individual opinion, but the opinion of the body consisting of himself and the first assessor and the constitution of the body being illegal, it will be just the same as if the trial was continued without the aid of any assessor. But, for the reasons already given, it is clear that assessors do not form a body or tribunal, but each forms an entity in himself acting independently of his fellow assessor or assessors. The status/therefore, of the remaining assessor and the validity of his opinion as such is in no way legally affected by the first assessor having been, contrary to law, allowed to resume his seat as assessor and that probably in junta position to the former.
13. The second contention above referred to in support of the preliminary ground is chiefly relied upon by the learned pleader who appeared for the appellant in Appeal No. 878. He argues that the Judge having invited the opinion of the first assessor as an. assessor and having presumably taken the same into consideration in arriving at his conclusion in the case, his judgment is thereby vitiated and should therefore be set aside. He further argues that he is entitled to the judgment of the Sessions Court and that this court as a court of reference or appeal cannot substitute its own judgment for that of the Sessions Judge, after expunging from the record the opinion of the first assessor which was taken into consideration by the Sessions Judge. If this argument were sound, its result will simply be to quash the conviction and sentence and direct the Sessions Judge to give a fresh judgment upon the evidence on the record without taking into consideration [the opinion of the first assessor. One need hardly predict what the result would be in an assessor's case in which the Judge decides according to his own judgment and on his own responsibility, though he takes into consideration the opinions of the assessors. It is not alleged that beyond giving his opinion when he was invited to do so at the conclusion of the trial, the first assessor, after his return, took any part in the trial by putting any questions to the witnesses through the court, or otherwise took any part in the trial beyond attending to it. Can it be argued that, though the second assessor validly continued as the remaining one assessor from and after the 5th of September, his opinion is vitiated and therefore invalidated by the first assessor having been invited to express his opinion first? If such a position can be maintained, it may then be said that it will be just the same as if the Judge decided the case without inviting the opinion of assessors, in which case a new trial will have to be held. It may be that the first assessor happens to be a retired Sub-Magistrate and that the second assessor is an ordinary trader devoid of 'forensic knowledge'. But that circumstance cannot lead to any presumption either of fact or of law that the former is more competent to form an opinion upon the evidence in the case than the latter, or that the latter was influenced in giving his opinion by the previously expressed opinion of the former, assuming, as I suppose it was the case, that such opinion was expressed in the presence of the latter. Even if, in fact, he was so influenced, it will not invalidate his opinion, whatever may be the value to be attached to such opinion, any more than the opinion of an assessor in any Sessions trial would be invalidated if in forming such opinion he was influenced by the eloquence or personality of the Counsel for the accused in the case or the opinion of the Judge expressed now and then during the trial of the case. Under the law the opinion of an assessor as I have already explained is his own individual opinion, and it must be accepted as such whatever considerations may have weighed with him in forming his opinion, and no evidence will be admissible to establish that his opinion was influenced by the opinion of a co-assessor or any other person, or by any other circumstance. If such a doctrine were accepted, where are we to stop? Suppose, in the present case, both the assessors had attended the trial throughout, will the trial have to be set aside because the opinion of the second assessor which echoed the opinion of the first assessor was invalidated because it was influenced by it, and the Judge in a trial with the aid of two assessors is to have the benefit of the opinion of each assessor but that in reality 'he had the opinion of only one assessor, which opinion resulted in the concurrent opinion of two assessors which must necessarily have carried more weight with the Judge than the single opinion of only one'?
14. The whole argument proceeds on a misapprehension of the functions of a Court of reference or appeal under the Indian law. It is not a mere Court of error, but the court as a court of reference, appeal or revision is enjoined by Sections 537, Criminal Procedure Code, and 167 of the Indian Evidence Act, not to reverse or alter the finding or sentence passed by a court of competent jurisdiction on account of any error, omission, irregularity, improper admission or rejection of evidence, unless in its judgment such error, omission or irregularity has, in fact, occasioned a failure of justice or unless independently of evidence objected to and admitted there was not sufficient evidence to justify the decision, or that if the rejected evidence had been received, it ought to have varied the decision. The only question which has now to be considered is whether the error or illegality committed by the Judge is one that is cured under either of the above sections, if this court is satisfied after rejecting the opinion of the first assessor that the conviction is right and that there has been, in fact, no failure of justice and that the accused have in no way been prejudiced in their defence by the first assessor having been allowed to resume his seat. Section 167 of the Evidence Act does not directly apply to the case, because it applies only to improper admission or rejection of evidence, and technically the opinion of an assessor, which the Judge is to take into Consideration in arriving at his conclusion, cannot be regarded as evidence any more than the confession of a co-accused affecting himself and others jointly tried with him for the same offence, which. confession under Section 8]0 of the Evidence Act the Court may take into consideration against such others, can be regarded technically as evidence Queen Empress v. Khandia Bin Pandu I.L.R. 15 B. 66.
15. The case, therefore, has to be dealt with under Section 537 as an error or irregularity committed by the Judge in his proceedings during trial in that he invited and took into consideration the opinion of the first assessor as an assessor when in fact and law he had forfeited his status as assessor when he departed on leave and the further trial was not adjourned until his return. In determining whether such error or irregularity has in fact occasioned a failure of justice, this Court as a Court of reference or appeal will be guided by the principle laid down by Section 167 of the Evidence Act in the analogous case of improper admission of evidence. Such is the course which is adopted when the Court below convicts a person upon the evidence on record taken along with the supposed confession of a co-prisoner if this Court considers that the so-called confession is no confession at all within the meaning of Section 30, or that for some other reason it ought not to have been taken into consideration by the Judge This Court does not and ought not to quash the conviction simply on that ground and order a new trial or direct the Sessions Judge to pass a fresh judgment after dismissing from his consideration such supposed confession. Put this Court takes and ought to take the responsibility of deciding whether independently of and apart from such confession the conviction ought to be upheld or set aside. Such confession not being technically evidence against the co-accused, the case is not dealt with directly under Section 167 of the Evidence Act, but has to be dealt with as an error or irregularity within the meaning of Section 537 of the Code of Criminal Procedure. But in determining whether the error or irregularity is cured under that section, the court is guided by the principle laid down by Section 167 of the Evidence Act and I am at a loss to understand how it can be maintained that even if the finding and sentence appealed against wore passed by a court of competent jurisdiction, yet it cannot be cured under Section 537 though this court might come to the conclusion that the prisoners were put prejudiced in their defence by the irregularity complained of and that the conviction was right upon the evidence on record after expunging the opinion of the first assessor. It is argued that the opinion of an assessor is a judicial opinion and is not on the same footing as the opinion evidence of expert witnesses or on the same footing as the confession of a co-accused and therefore Section 537, Criminal Procedure Code, cannot be applied to the case. No doubt an assessor like a juryman is a public servant, vide Section 21, Clause (5), Indian Penal Code, and like a juryman he is expected to form and give his opinion on the evidence given at the trial and not to act upon his personal knowledge of any relevant facts of the case without giving evidence of the same as a witness in the case (vide Section 294, Criminal Procedure Code) and he may also like the jury be allowed to put questions through the court to witnesses under examination (vide Section 166 of the Evidence Act). But the opinion of an assessor is certainly not a judicial opinion in any sense, though one may not be so hypercritical as to object to its being characterised or referred to as quasi-judicial. But in my opinion, assessors are analogous to expert witnesses and in principle the opinion of an assessor is substantially on the same footing as the, opinion evidence of expert witnesses. A brief retrospect of Indian legislation in regard to trial of criminal cases with the aid of assessors would clearly show that such is the correct view, and it is also in conformity with the institution of assessors in England in civil cases, especially in admiralty, ecclesiastical, patent and similar cases (vide Vol I of Encyclopaedia of Laws of England, p 348). The earliest Indian legislation which authorised European functionaries presiding in Courts of Session to constitute two or more respectable natives to assist them as assessors 'with a view to the advantages derivable from their observations particularly in the examination of witnesses' is Regulation VI of 1832 which was applicable only to Bengal. Act VII of 1843 extended that system to the Presidency of Madras, and it was provided by Section 32 of that Act that Sessions Judges may in the trial of criminal cases avail themselves of the assistance of respectable natives or other persons by constituting two or more such persons assessors or members of the court 'with a view to the advantages derivable from their observations, particularly in examination of witnesses'. It was further provided that the opinion of each of the assessors shall be given separately and discussed and if so desired, recorded in writing. I may also observe that, under that Act, the opinion of assessors had a potentiality which it has ceased to have since the enactment of the Code of 1861. Thus it will be seen that provision was made by the Legislature for Europeans administering justice in a foreign land and therefore deficient in their knowledge of the customs and habits of the parties and witnesses appearing before them and also deficient in judging of their demeanour in the witness-box, having the benefit of the opinion of two or more respectable natives of the land as assessors possessing such knowledge and judgment. Such being the principle underlying the institution of assessors in India, which is the same as that in England in the class of cases already referred to, the opinion of an assessor given upon the whole case tried before a Court of Session or any portion of such case is in principle on the same footing as the opinion evidence of a person specially skilled in foreign law, science or Article
16. On the ground, therefore, that assessors are not members of the Court of Session, that the trial in this case validly commenced with the aid of two assessors, that one of the assessors attended the trial throughout till its termination, that his status as an assessor has not been affected and his opinion recorded by the Judge at the conclusion of the trial has not been invalidated by the action of the Judge in allowing the first assessor to resume his seat as an assessor and inviting his opinion as one of the assessors at the conclusion of the trial, but that such action on the part of the Sessions Judge is only an error or irregularity in a proceeding during the trial, which, if it has not, in fact, prejudiced the accused, could be cured under Section 537 of the Code of Criminal Procedure, I would overrule the preliminary objection and proceed to hear the case on the merits and affirm or set aside the conviction, according as, in the opinion of this court, the evidence in the case without taking into consideration the opinion of the first assessor does or does not warrant the conviction of the prisoners.
17. I do not think that there is any validity in the preliminary objection.
18. The law does not require that a trial should be held with the aid of two assessors throughout. It requires that a trial shall be commenced with the aid of two assessors, but it makes a special provision (Section 285, Criminal Procedure Code) for the unavoidable absence of one of the assessors after the trial has commenced. In such case the law allows the trial to proceed and to be completed with the aid of one assessor only. It is only if both assessors are unavoidably absent that the proceedings are to be stayed and a new trial, with the aid of fresh assessors, held. In the present case one assessor was present throughout, and if the second assessor had not been allowed to return after absenting himself for a time, there could be no question as to the validity of the trial. The law, it is true, does not contemplate that an assessor, having once absented himself, should return and take part in the proceeding at a later-stage, and the Sessions Judge ought not to have allowed him to do so in this case. His having done so was, no doubt, an irregularity, but the law expressly provides (Section 537, Criminal Procedure Code) that an irregularity in the proceedings is no ground for setting aside a finding or sentence 'unless the irregularity has, in fact, occasioned a failure of justice.' The onus is on the appellant to show that there has, in fact, been a failure of justice owing to the irregularity. This has not been shown in the present case. In my opinion, therefore, the preliminary objection has no validity and should be overruled.
19. As regards the preliminary objection that the convictions of the several appellants are bad in law inasmuch as the case was not tried by a competent tribunal, the following are the facts:--The trial began on the 23rd August 1900 with the aid of two assessors as was right and was regularly continued with the aid of the two assessors from day to day until the 5th of September. On the afternoon of that day and for the two following days, the 6th and 7th September, the first assessor was allowed to absent himself an account of the illness and death of his mother while the trial proceeded with the aid of the one remaining assessor. The Judge did not dispense 'with the further services of the first assessor as he might have done under Section 285(1), Code of Criminal Procedure, and as he ought to have done if he could not adjourn the hearing, for, on the assessor's return to the Court on the 1,0th of September, which was the next date of hearing after the 7th, the Judge reinstated him as first assessor, and the deposit-ions of the prosecution witnesses Nos. 47 to 62 which had been taken during his absence for the 2 days were then 'shown to, and road by, him.' The trial went on with the two assessors until the 14th September, but on the following 3 or 4 days (the Judge in his report is not very precise as to the dates) the first assessor was again allowed to absent himself every day up to 1 P.M. in order to perform his mother's funeral ceremonies, and the trial proceeded during his absence, as before, with only the remaining assessor, but 'he read the depositions recorded during his absence before he resumed his seat in the afternoons''. The depositions taken on these occasions were these of defence witnesses. Prom the 19th September till the 29th idem, when the examination of witnesses was concluded, and up to the 15th October, when the trial was closed, both assessors sat together and at the end of the trial, the opinion of each was taken and duly recorded.
20. It is thus clear that the trial purports to have been conducted with the aid of two assessors, and it is so made to appear on the face of the Judge's record. Neither in his Judgment not elsewhere is there anything to indicate that the two assessors had not sat together throughout the trial.
21. Now my learned colleagues are of opinion that it must be considered that the trial on and after the 5th September was held with the aid of only one assessor which was permissible under Section 285(1), Code of Criminal Procedure, and that the resumed sittings of the first assessor and his taking part in the proceedings after his absence from the 5th to 7th September should be treated as an irregularity not occasioning a failure of justice. I am unable to accept this view. In the first place the Judge did not as a matter of fact act under Section 285(1) nor does he profess to have done so, and in the second place the opinion' of the first assessor finding the appellants guilty must have done them positive harm. The first assessor happens to be a retired Sub-Magistrate versed in criminal affairs, and it is highly probable that his opinion had great effect on the mind of the second assessor, who is an ordinary trader devoid of forensic knowledge. Had the second assessor been left to give his own opinion without hearing the first assessor's opinion he might have given one different from what he did. In any case, the taking of the first asssesor's opinion resulted in the concurrent opinion of two assessors which must necessarily have carried more weight with the Judge than the single opinion of one. The opinion of an assessor is given in the exercise of a judicial function imposed on him by law, and the Judge is bound to take it into consideration. He cannot dispense with it. Considering the status of the first assessor the Judge was doubtless influenced by his opinion in coming to his own conclusions on the many doubtful points in the case, which he has himself set out in his Judgment, but he had no right to ask for or take that opinion, and by having it his judgment was vitiated. I can see no analogy between assessors in civil cases in England and the assessors we have in criminal cases in India. A Court consisting of a Judge and two or more assessors by which every person must be tried before a Court of Session when he is not tried by jury, appears to me a compromise between a trial by Judge and jury, and by a single Judge. It is a constitutional privilege, the benefit of which is not confined to the subject, for in on appeal by a person convicted in an assessors' case, the Crown can as well rely on the opinion of the assessors if it is in favor of a conviction as the prisoner can when their opinion is the other way.
22. I must therefore take it as the fact that this trial was a trial held with the aid of two assessors as the law requires (Section 268, Code of Criminal Procedure). It began with two assessors, and it ended with the two same assessors and the depositions taken during the absence of the first assessor were handed to him for perusal as a functionary who was taking part in the whole trial. The absence of the first assessor extended in all to 4 or 4 days upon which the evidence of witnesses both for the prosecution and for the defence was being taken out of a total of 30 days occupied in their examination. So that, there was a lawfully' 'constituted Court for 26 days while for 4 days, there was not. The question then is whether if in a trial held by a Judge with the aid of two assessors one of the assessors is absent for a considerable portion of the time during which the most important part of the trial, viz., the examination of witnesses, is proceeding, the Court ceases to be a Court of competent jurisdiction. It seems to me that there can be no doubt that in such circumstances, the trial is rendered null and void, for Section 295, Code of Criminal Procedure, lays down the rule that if a trial is adjourned, as this was, from day to day,' the jury or assessors shall attend at the adjourned sitting and at every subsequent sitting until the conclusion of the trial.' It follows that, in my opinion, the conviction of the appellants must be set aside and a re-trial ordered.
On the merits
Davits and Benson, JJ.
23. (In Referred Trial No. 61 and connected Criminal Appeals Nos. 874 to 878 and 1028 of 1900).--The preliminary objection being overruled, we now turn to the merits of the case.
24. The first eight accused, Kona Tirumal Reddi, Pocham Tirumal Reddi, Madargadu, Imamgadu, Kavadi Hussen, Mushkingadu, Penchikala Pedda Narayana, and Poreddi Subbayya, have been convicted of the murder of Bathini Ranga Reddi, a B.A. and B.L., and 1st grade pleader in the District of Bellary. The ninth accused Kona Timma Reddi is a rival pleader of the 2nd grade in the same district and a brother of the first accused. He has been convicted of abetting the murder. All have been sentenced to death except the third and sixth accused, who have been sentenced to transportation for life. They appeal against their conviction. There was another count charging the 9th accused with another act of abetment together with the 1st and 2nd accused, but they were all acquitted on this count. Against this acquittal the Public Prosecutor appeals on behalf of Government. The facts of the actual murder, according to the evidence for the prosecution, are very briefly, as follows:--On the 11th June 1900 the deceased pleader, B. Ranga Reddi, was travelling in his cart from Rayalcheruvu Railway Station, which he left at 10 A. M., to his father's house in Chimalavagupalli, 7 miles off, accompanied by his gumastah Narain Reddi (17th prosecution witness) and by two clients (18th and 19th. prosecution witnesses) belonging to a distant village named Rayampalli, the cart being driven by bandyman Hanumantu (20th prosecution witness). On the way the two clients got down to drink at a stream and then followed at a little distance behind the cart. When the cart got to the dry bed of a stream called Rallavagu or Vanka, the time then being about 11-30 A.M., the first eight accused and another man, named Subbi Reddi, met the bandy, threw stones at it and stopped it, the first accused firing his revolver at the bandy but without effect. Ranga Reddi fired a shot in return from a revolver which Narain Reddi had brought with him from Ohimalavagupalli but also without effect. Two of the accused (5th and 6th) then gave the bandyman a couple of blows with sticks on the leg and knocked him down, and another (7th accused) cut the rope which fastened the bullocks to the pole. Narain Reddi, the gumastah, jumped down from the cart and tried to run away but was pursued and stopped by the 5th and 8th accused who then turned back and stopped the two Rayampalli men (who had run up on seeing the disturbance) and threatened to kill them if they came farther. The 2nd, 4th and 7th accused meantime dragged Ranga Reddi out of the cart, and the 2nd accused and Subbi Reddi cut him with their axes, the first accused finally cutting his throat from ear to ear. When going away the first accused took with him the revolver which the deceased had fired. the 3rd accused was present armed with a stick, but is not said to have taken any active part in the murder. Two ryots (Rangayya and Pedda Appayya, 21st and 22nd prosecution witnesses) who were in the fields half a mile or so from the spot, hearing the revolver shots, ran, up to the scene of offence in time to see the murderers going away. They recognized the 1st and 2nd accused and Subbi Reddi whom they previously knew and spoke to Narain Reddi about the murder. This is the evidence for the prosecution, and the question is whether it is to be believed or not.
25. The defence is that each and all of the accused were elsewhere at the time of the murder and knew nothing as to how, or by whom, it was committed.
26. The accused contend that they were falsely accused because the real murderers were not Known, and they were pitched upon owing to enmity that existed between the deceased on the one hand and the first accused and his brother, the ninth accused, on the other hand; that the 2nd accused and Subbi Reddi were added as they are brothers-in-law of 1st accused, and the 3rd, 4th and 5th accused as they are his horsekeepers or servants, and the 6th, 7th and 8th accused as they are connected with Subbi Reddi. The enmity between the deceased and 1st and 9th accused was admittedly of the bitterest character and had become Very acute just before the murder. The prosecution points to it as the motive which led to the murder. All the circumstances show that the murder was not by dacoits for the sake of robbery but was owing to private enmity. The Kona and Battini families, to which the 1st accused and the deceased respectively belong, are two of the most powerful families in that part of the country. The deceased's father Chenna Reddi pays Rs. 1,600 for his patta lands, while the 1st accused, Kona Tirumal Reddi, has patta lands assessed at over Rs. 1,000 per annum. He lives in Tirunampalli, about two miles north of the scene of offence. The 2nd accused Pocham Reddi is Tirumal Reddi's brother-in-law and lives in Tippareddipalli close to Tirunampalli and about 1 miles from the scene of offence. He is also a wealthy and powerful man. The Subbi Reddi, who has been separately tried, is another brother-in-law and a well-to-do man. The deceased's gumastah and the bandyman, who both belong to the neighbouring village of Chimalavagupalli deceased's father's village, knew these three accused well before the murder. The gumastah had taken a prominent part in a criminal case for false coining brought against the 1st accused some time previously on information given by the deceased. It will be observed that the case for the prosecution is that these well-to-do men, 1st accused and his two brothers-in-law, themselves took the most prominent part in the murder, which was committed in broad daylight and in the presence of two men, the handyman and the gumastah, who knew them previously and would be certain to identify them, and yet made no attempt to kill either of these witnesses though they had both in their power for some time and had half a dozen hired assassins with them, so that their murder would be a perfectly easy matter. The gumastah received no injury of any sort, and the handyman received only a couple of blows with stick on the foot.
27. This story is, on the face of it, so improbable as to be almost incredible unless it is corroborated. The prosecution has evidently felt this difficulty and has endeavoured to corroborate it in various ways.
28. In support of the truth of story told by the alleged eyewitnesses, the prosecution points to the fact that they gave substantially the same account at the inquest which was held in the presence of the Sub-Magistrate about 9 P.M., on the day of the murder. The inquest report (Exhibit D) shows that the gumastah and handyman then named the 1st and 2nd accused and Subbi Reddi as the actual murderers and described minutely the part each took. They also identified the 3rd accused, Madargadu, who had been arrested on suspicion the same afternoon and had made a statement involving the other accused and Subbi Reddi. They also said that they could identify the other five murderers. The Rayampalli witnesses, of course, did not know any of the accused previously, as they were strangers in that part of the country, but they identified Madargadu then in custody and said they could identify the others if they saw them.
29. The prosecution further shows that the 1st accused and his brothers-in-law were named as the murderers early the same afternoon in the report (Exhibit 2) sent by order of Chenna Reddi, the father of the deceased, to the Police Station House Officer of Yadiki, and in the telegram (ExhibitF (1)) sent by Chenna Reddi to the District Magistrate. It is however unfortunate that there J was great delay in the receipt of both these documents. Yadiki is only four miles from Chimalavagupalli, and, according to Chenna Reddi and other prosecution evidence, the report (Exhibit 2) was sent off at 1 P.M. It ought therefore to have been received about 2 P.M., and the Police might well have been expected at the scene of offence by 3 o'clock or soon after. As a fact no policeman arrived until after 7 P.M., and the explanation for this long delay can hardly be called satisfactory. It is to be noted that though the bandyman, according to his evidence at the trial, knew the 5th accused previously by name, the name is not mentioned in this report to the Police. The 4th accused was also a man of Yadiki and was known, apparently, as first accused's horsekeeper, theugh not by name, to the bandyman. Yet no reference is made to him in the report. It therefore seems improbable that the bandyman had at that time stated that either of these men were among the murderers. Then the telegram (Exhibit F1) to the District Magistrate on the face of it purports to have been received for despatch at Pennar Railway Station at 3 P.M., and it was not actually despatched until. 3-40 P.M. The Assistant Station Master of Pennar, who was examined at the trial, and the Station Master and Venkataranga Reddi, a son of Chenna Reddi, who were both examined by us at the hearing of the appeals, explain that the telegram was really sent to the Railway Station at the same time with two others addressed to Kesava Pillai and Basi Reddi, which two wore certainly despatched at 1-25 P.M. These are addressed to a vakil and a relative, and in them the fact of the murder alone is mentioned. The names of the murderers are not mentioned. In the telegram to the District Magistrate, however, the names of the first accused and of his two brothers-in-law are given. It runs as follows:--'My son C. Ranga Reddi, pleader, Gooty, was murdered to-day by Kona Tirumal Reddi, P. Thirumal Reddi, Subbi Reddi and five others. You should enquire the case yourself.' The witnesses explain that the three messages were written on one piece of paper and were brought to the station by Balaranga Reddi, a son of Chenna Reddi, but that he had only Rs. 5 with him whilst the three messages together cost Rs. 5-8-0 and that therefore the message to the District Magistrate was detained until Balaranga Reddi returned home, a distance of three miles, and sent the additional eight annas. Everything connected with the sending of this telegram is shrouded in doubt and uncertainty, and we are by no means satisfied that we have been told the truth in regard to it. The paper on which the three telegrams were written has not been produced. In fact at the trial no reference was made to the three being written on one piece of paper. For aught that there appeared, there were three separate telegrams. The sender of the telegrams appeared from the evidence at the trial to be Chenna Reddi himself, but it was only at the appeal that we were told that the writer of the telegrams was Venkataranga Reddi, and that he was in Court and might be examined. This young man is aged 24 years. He is a B.A., and has completed his Law course. He says he was in his father's house when Narain Reddi and the other eye-witnesses brought news of the murder, and that he subsequently wrote and sent the telegrams. From his age and education he might certainly have been expected to take a prominent part in the inquest and other proceedings, yet not once in the whole record does his name appear. Two other sons Balaranga Reddi and Krishna Reddi, who do not know English, are mentioned. The latter went with his father to see the corpse, and he signed the incomplete inquest report (Exhibit L), as also did Appi Reddi, the brother of Chenna Reddi. It is strange that the young lawyer, if really present, is nowhere mentioned in the record of the trial as having taken any part in the inquest or other proceedings or in writing reports to the Village Magistrate or Police. Again, the story that the telegram to the District Magistrate was delayed for a couple of hours for the sake of eight annas is highly improbable. The Station Master was a friend of Chenna Reddi's family, and Chenna Reddi's own son had brought the telegram. The early despatch of the message was manifestly of importance. Four words could have been struck out without altering the sense, or if the Station Master was unwilling to advise the son to take that responsibility, it still seems hardly credible that he, as a friend, would not have lent the money and sent off the telegram. The prosecution relies on the counterfoil receipts (Exhibit G) kept by the Station Master to show that while he was writing the receipt (No. 76) for the message to the District Magistrate at Anantapur, the deficiency was discovered and the receipt was then changed into one for Kesava Pillai's message addressed to Gooty. The position of the words 'Gooty' and 'Anantapur' support this view, but it may be that as Basi Reddi's message was for Anantapur that station was also first written by mistake for Gooty in Kesava Pillai's message. The receipt in fact does not take us further than the Station Master's oral evidence, while the alterations in the figures in the receipt book are highly suspicious as indicating fabrication. Chenna Reddi himself has stated very fully that he sent the telegram, and if his evidence is correct it is difficult to see how it could have reached Pennar Station as early as 1-25 P.M. The evidence shows that the murder must have been committed at about 11-80 A.M. The place was one mile and five furlongs from ChimalavagupaHi where Chenna Reddi lives. After the murder the gumastah says he ran to ChimalavagupaHi and told Chenna Reddi and others about the murder. This must have been just before noon, as Chenna Reddi says it was. Chenna Reddi says he at once started for the scene of the murder, but on reaching the outskirts of the village fell down (from faintness and shock) and returned home, sending others on to the corpse. One of the witnesses says Chenna Reddi got to the karnam's field half way to the scene of the murder before he turned back. If so, it must have been about 12-30 when he got back to his house. He rested there a few minutes and told his people to send word to the Magistrates who were at Jutur about five miles away to the south.
30. Chenna Reddi goes on to say that after the messenger was despatched to the Magistrates at Jutur, he got into a cart and went to see the corpse, and after remaining there a short time returned home and then told his people to send a report to the police and a telegram to the District Magistrate and to Kesava Pillai and Basi Reddi. The journey there and back would be 3 miles, and he must have remained a few minutes with the corpse. The visit could not have occupied less than an hour in all; so it must have been about 2 P. M. when these telegrams and the report were sent from ChimalavagupaHi, and as ChimalavagupaHi is about three miles from Pennar it must have been much nearer 3 P.M. than 1-25 P.M. when the telegram reached Pennar Railway Station, thus agreeing closely with the time when, as we know, the telegram to the District Magistrate was, on the face of it, received for despatch. The only way out of the difficulty is to suppose that Chenna Reddi has made a mistake and that the telegrams were really sent after Chenna Reddi's abortive attempt to go to the corpse instead of after his actual visit to it. Chenna Reddi is, no doubt, an elderly man and was suffering from a terrible shock at the time and may therefore well be mistaken as to the hour of the day when he did any particular act, but it is less easy to suppose that he is mistaken as to the sequence of events. The evidence of other witnesses does not show that he has stated the sequence of events incorrectly. If he has stated them correctly, it is hardly within the range of physical possibility that the telegrams could have reached the station at 1-25. The difficulty disappears if it is supposed that the telegrams to Kesava Pillai and Basi Reddi were sent before Chenna Reddi visited the corpse, and that to the District Magistrate after the visit, but this supposition is opposed to the oral evidence. It is of primary importance to the prosecution to show that the report to the Police and the telegram to the District Magistrate naming the 1st accused and his brothers-in-law were despatched at so early a stage as to render the defence of concoction highly improbable. If, on the other hand, it is shown that, before these exhibits were written, the names of the murderers were not known to persons who ought to have known them if the prosecution evidence wore true, it goes far to show that the prosecution evidence and the statements in these exhibits as to the names of the murderers are untrue. This brings us to a portion of evidence which has not received the consideration due to it in the Sessions Court and which seems to us to afford almost decisive proof that the evidence as to the identification of accused 1 and 2 and Subbi Reddi as the murderers is untrue. It will be remembered that Chenna Reddi in his evidence said that after he returned from his abortive attempt to go to the corpse and before he started thither again in the cart he 'sent a man to Jutur to in form the Deputy Magistrate and the Yadiki Sub-Magistrate who were halting there'. The messenger was Papodu (72nd prosecution witness), a relative of Chenna Reddi. He had been with many others to see the corpse, so it must have been nearly 1 p.M. when he left Chimalavagupalli for Jutur. He reached Jutur at 2-20 p.M., and the Sub-Magistrate (5th prosecution witness) recorded his statement (Exhibit 5) at 2-30 P.M. This statement was made at a time and under circumstances which afford a strong guarantee of its truthfulness. In it the witness does not mention the names of any persons as the murderers, nor does he make any mention of Narain Reddi, the gumastah. He merely told the Deputy Magistrate . (63rd prosecution witness) that 'some persons' were the murderers '? witheut naming any one. Tie witness now says that he had heard a rumour that the murderers were the 1st accused and his men, ' but there is not a trace of this in his statement to the Sub-Magistrate. It must be observed that this witness Papodu is not a common cooly. He is a relative of Chenna Reddi and of the deceased. He was therefore strongly interested in the matter and he went 'with many other persons' of the village to the scene of offence. He is evidently an intelligent and observant witness and was able to describe the various wounds on the corpse accurately to the Magistrate. He had noticed the bullock bandy and what had become of the bullocks. He had noticed Hanumantu, the handyman, limping and the wound on his heel. He had noticed the two strangers who wer,3 said to have come with the deceased in the bandy. It is true that he says he did not speak to them, or to the bandyman, but it is not suggested for the prosecution that Narain Reddi or Hanumantu had any object in concealing the names of the murderers for a time, or did, in fact, do so. If the murder occurred as the alleged eye-witnesses say, and if three of the murderers were well known to the gumastah and bandyman and were identified by them at the time, the natural thing for them to do would be to go as soon as possible to the village and tell every one about it, and there is no suggestion that they did otherwise. Chenna Keddi was the great man of the village, and if Narain Keddi had come proclaiming that his master Chenna Reddi's son had been just murdered by his old enemies and had named them, every soul in the village would have known the fact within ten minutes. The names of the murderers would have passed from mouth to mouth like wild-fire. The witness did not start for Jutur until about an hour after the news of the murder had come, and he had spent the hour in visiting the corpse 'with many persons of the village' and returning to Chenna Reddi at Chimalavagupalli. Chenna Reddi himself sent him to inform the Magistrates. Is it possible in these circumstances that the witness would not have known who the alleged murderers were or would have failed to inform the Deputy Magistrate and the Sub-Magistrate when questioned minutely as to all he knew of the matter? The fact that merely a verbal message was sent strongly suggests that only the fact of the murder, not the names of the murderers, was then known, and the suggestion becomes almost a certainty when we find that the messenger knew nothing as to the names of the murderers, notwithstanding that, in the circumstances, he must have known them if they were really then known to the eye-witnesses. The inference to he drawn from Exhibit 5 is that the names of the murderers were not known in the village when the messenger left it, i. e., at about 1 P.M. 'It also affords ground for an almost equally strong inference that Narain Reddi was not with the bandy at the time of the murder--a conclusion at which the Sessions Judge also arrived on other ground which are entitled to considerable weight. He was an important person as being the gumastah of the deceased. If he had been an eye-witness of the murder and had come into the village with the tidings of it, it is hardly possible that Papodu would not have known the fact and stated it to the Magistrate when he told him that Hanumantu was driving the cart at the time and that the deceased was also accompanied in the bandy by 'two strangers' whose names he had not learned. The inference to be drawn from Exhibit 5, that the names of the murderers were not known at 1 o'clock on the day of the murder, is strongly supported by Exhibits Y and Y1 which are the reports sent by the Village Magistrate of Vemulapad (49th prosecution witness) to the Station House Officer of Yadiki and the Sub-Magistrate of Jutur. They state that the writer heard that Ranga Reddi had been murdered at 11 o'clock that day at the Rallavagu and that on going there he found the deceased with his throat cut. These reports, the witness says, were written at about 1-30 P.M., but nothing is stated in them as to who the murderers were The witness at the trial endeavoured to account for this by saying that there were no persons at the corpse when he went there except three strange weavers who knew nothing about the deceased or the murder. This evidence is manifestly false. The rumour of the murder reached the witness at Timmapuram, a couple of miles from the scone of offence, at 1 P.M., and must have come from Chimalavagupalli, whither the eye-witnesses went after the murder. The witness reached the scene of the offence at, 1-30, and we know from Papodu's evidence already dwelt on (Exhibit 5) that he (Papodu) had gone there 'with many persons' of Chimalavagupalli and must have arrived there at or before 12-30. It is wholly incredible that a crowd having once come from the deceased's village, would have entirely dispersed and left the body alone and unguarded. Later the same afternoon the evidence shows that there were hundreds of persons gathered at the scene of offence, and it is certain that many persous of Chimalavagupalli must have been there from the time that Papodu went there. These persons must have known that 1st and 2nd accused and Subbi Reddi were alleged to be the murderers if, as the eye-witnesses say, they were at once named by them at Chimalavagupalli and they must have told the Village Magistrate when he came there. The inference from Exhibits Y, Y1 is the same as from Exhibit 5, viz., that' up to 1 or 1-30 P.M. the names of the murderers had not been mentioned by the eye-witnesses. The fact that the Village Magistrate by false evidence endeavours to minimise the adverse inference may be due to his being a connection by marriage of the deceased and Chenna Reddi.
31. With such strong grounds for disbelieving the alleged eyewitnesses of the murder on the primary question as to the presence of the 1st and 2nd accused and Subbi Reddi, it is not necessary to go at much length into the other evidence adduced by the prosecution to corroborate them. The so-called confession of Madargadu (3rd accused) is no confession at all. He is most careful to say that he was an innocent spectator of the murder, taken to the spot without any knowledge that an offence was to be committed, and that he took no part whatever in it. It cannot, therefore, be considered as against the other accused under Section 30 of the Evidence Act. Nor can it even be taken against himself as an admission that he was present, for it is plain that he was beaten and threatened by the men who arrested him on suspicion before he made it, and it is not at all clear that the effect of this had been wholly removed before he made his statement to the Magistrate (Exhibit K). Moreover, intrinsically it is not consistent with the evidence for the prosecution in that it omits several important incidents that would naturally have been mentioned if they had occurred and if his statements were true, It does not refer to the hiding of the murderers in the well near the scene of offence, the Rayampalli men coming up behind, the two ryots coming up just as the murderers were leaving the place, and, (most important of all) the assembly of the accused 3 to 8 in the house of the 2nd accused at Tippareddipallli after the murder for the purpose of washing the axes and blood-stained clothes. If it it true he could hardly have failed to mention this last incident in answer to the question 'where did you all go after that?' that is, after the murder was completed: His answer is 'I ran away to Yadiki. The others ran towards Tirunampalli.' The incident depends for its proof on the evidence of a single witness Haji Bi (23rd prosecution witness) who is a Mussalman sweeper girl aged 12. Though the Sessions Judge believed her, the whole story seems to us improbable. It and the evidence of the four 'well witnesses' who speak to the hiding of the murderers in the well before the murder,' and the evidence of the two ryots who came up as the murderers were going away, are of the kind so often produced in important cases 'to complete the chain of evidence' as it is called. We can attach no importance to such evidence, where, as in this case, we are unable to trust the evidence of the main witnesses for the prosecution. Then there is the confession of Mushkingadu, the 6th accused. This, unlike Madargadu's statement, is a confession of the man's own guilt involving also Subbi Reddi and the other accused, except the 9th. It may be considered against all the accused, but it does not seem to us to be a true confession. It seems to us to be more like a story which the prisoner had been taught in order to confirm the evidence of the prosecution witnesses. The story 'that he accepted the revolver of the deceased from 1st accused in part-payment of his hire for the offence just after it was committed, and then within a few days of the murder tried to sell it openly to a man of a neighbouring village who cannot shoot and then afterwards concealed it, is manifestly incredible. We cannot act on this confession when we do not trust the main witnesses for the prosecution.
32. We must then acquit Kona Tirumal Reddi and his brother-in-law P. Tirumal Reddi on the following broad grounds:
(1). It is altogether improbable that men of their wealth and position would have personally taken part in a murder in broad daylight in the presence of four witnesses, two of whom were the servants of their enemies, knew them well beforehand, and would be certain to identify and denounce them at once as the murderers; the murder was not, according to the prosecution theory, the result of a sudden meeting and a sudden fight, but was premeditated; and the 1st and 2nd accused had engaged half a dozen hired assassins, so there was no need for the leaders to expose themselves,
(2). It is altogether improbable that if the 1st and 2nd accused and Subbi Reddi did take part in the murder personally, they would not have killed, or at least have attempted to kill, the gumastah and handyman, who knew them previously, and thus save themselves from the certainty of detection that must have followed on letting them escape. They had them in their power, according to the prosecution evidence, and could have despatched them with ease and certainty.
(3). The conduct of Chenna Reddi and his friends was not such as it would have been if the murderers were known and their names were at once declared to them by the eye-witnesses. No reports, mentioning the names, were written to the Village Magistrate or to the Sub-Magistrate, and there is strong reason to doubt whether Chenna Reddi's report to the Police and his telegram to the District Magistrate, in which the names of the 1st accused and his brothers-in-law are first given, were sent until much later in the afternoon than the oral evidence of the prosecution witnesses in contradiction to the written evidence, makes out.
(4). The earliest reports (Exhibits Y, Y1) and the earliest recorded statement (Exhibit 5) do not indicate that any of the murderers were known, though the reports were written and the statement was made some time after the murder and in circumstances which make it certain that the names would have been stated if the evidence of the prosecution witnesses were true.
33. We have carefully considered whether the conviction of the accused 3 to 8 can be sustained notwithstanding the acquittal of the 1st and 2nd accused, and we have come to the conclusion that it cannot. It is true that the gumastah and bandyman had not the same strong motive for falsely accusing them that they had in regard to the 1st and 2nd accused and Subbi Reddi. But if they falsely accused the principals, they can hardly be trusted when they profess to identify their retainers. Nor can we accept the evidence of the two Rayampalli men, though they had no motive at all for giving false evidence. They are either mistaken or corrupt in their identification of 1st and 2nd accused and Subbi Reddi, and it is impossible to hold that they may not be equally wrong as regards the other accused. They knew none of the accused previously. Madargadu, the 3rd accused, was arrested by some of Chenna Reddi's friends on suspicion, because he was known to be a servant of the 1st accused and had come to the village comparatively recently. He was vehemently accused of guilt, threatened and beaten by the villagers, and he then denounced, in addition to the 1st and 2nd accused, the accused 4 to 7, who were arrested a few days later.' The 8th accused was arrested in consequence of the 6th accused, after his arrest, having named him.
34. So atrocious a crime naturally produced strong indignation against the murderers, and it was not unnaturally assumed that it must have been the work of the 1st accused and his relatives and their retainers.
35. It is easy to understand how, in these circumstances, Madargadu, when forced to implicate some persons, named the other accused, and it is equally easy to understand that his statement would be accepted by the Rayampalli witnesses and others as true. It is not shown that these witnesses were taken to see these accused before they identified them, but there can be no doubt that they had opportunities for so doing. They, no doubt, believed that the right men had been caught, and it is in accordance with all experience that in such circumstances witnesses of their class have no difficulty in identifying the persons believed to be guilty. They identified the 1st and 2nd accused, though it is practically certain that they were not among the murderers, and they have falsely spoken to the presence of Narain Reddi at the scene of the murder. So we think it would not be safe to act on their identification of the other accused.
36. We must therefore acquit the accused 3 to 8 also.
37. We pass now to the charges of 'abetment. These are two in number. They are not very happily framed, but in substance the first charge is that the 1st, 2nd and 9th accused and Subbi Reddi conspired together on the 19th March 1890 to murder. Ranga Reddi, in consequence of which the murder was committed on the 11th June 1900 ; and the second charge is that the 9th accused on the 10th June gave information as to the intended movements of Ranga Reddi and thus aided in his murder on the next day.
38. The first charge rests on the evidence of Hussain Khan (82nd prosecution witness) and was disbelieved by the Judge. We have no doubt but that his evidence is wholly untrustworthy and that the acquittal on this charge was right. Indeed, the appeal against the acquittal was hardly pressed. The Sessions Judge, however, believed the second charge, and convicted the 9th accused on it. We are unable to think that the evidence is trustworthy or that even if it we most is sufficient to prove the charge. It will be remembered that the 9th accused Timma Reddi is a vakil practising at Gooty and is the brother of the 1st accused. He returned to Gooty from the Mysore Royal Wedding on the 10th June. The case for the prosecution is that on that day the 4th, 7th and 8th accused wore in Gooty and were seen speaking with Timma Reddi and must have obtained information from him as to the intended movements of Ranga Reddi next day.
39. We have already found that there is no trustworthy evidence that accused 4, 7 and 8 took part in the murder, and, that being so, the fact that they were together in Gooty and that the two latter were seen speaking to the 9th accused on the previous day, even if true, would not lend to any inference against the 9th accused. The evidence, however, is of a character by no means satisfactory. It consists of the statements of the 64th, 68th, 69th, 71st, 78th witnesses. The 64th witness is a gymnast hired some months before as a bodyguard for Ranga Reddi to protect him from being murdered. He says that when he was going with Narain Reddi to the Gooty Railway Station on the evening of the 10th June, the 9th accused questioned him and he then told him that his master (Ranga Reddi) was going to Rayalcheruvu next morning and that Narain Reddi was going to bring a cart to the station for him. It is not likely that Timma Reddi would thus openly seek information as to his enemy's movements, and it is still less likely that he would obtain it. The 68th and 69th witnesses are coolies ; the latter merely says that he saw the 4th, 7th and 8th accused with the 68th witness, and this witness merely says that she cooked food for the 4th, 7th and 8th accused who said they had come to see the 9th accused and would go away by the night train after speaking to him. If they had really come to consult with him about the murder, it is hardly likely that they would inform this cooly woman of their intentions. The 71st witness, Viranna, says that he went on business to the 9th accused on the 10th June and saw the 7th and 8th accused in his house. The Sessions Judge points out that the 9th accused had acted against this witness, in civil and criminal cases, and says that his evidence, if it stood alone, might well be doubted. He, however, thinks that it is corroborated by the evidence of Nagi Reddi (78th prosecution witness), a respectable man, and therefore accepts it. Nagi Reddi, no doubt, corroborates Viranna as to the visit to Timma Reddi's house, but he does not corroborate him on the only matter of importance, viz., the presence of the 7th and 8th accused in the house. Indeed, he contradicts him on this point. He says that he and Viranna remained in the same room, that Timma Reddi came to speak to them there, and that there was no one else there. It is impossible to conclude from this evidence that the 9th accused sent information of Ranga Reddi's intended movements, and thus aided and abetted his murder.
40. We must therefore acquit the 9th accused Timma Reddi on this charge.
41. It is much to-be regretted that so heinous a crime should go unpunished, but it would be ten times worse if men should be unjustly condemned to death under the forms of law because their enemies and others believed them to be guilty of instigating the murder, and so gave false evidence to secure what they regarded as a well-merited punishment.
Davies and Benson, JJ.
42. (In Referred Trial No. 9 of 1901 and Criminal Appeal No. 143 of 1901).--In this case the charges are identical with the charges against the 1st and 2nd accused in Referred Trial No. 61 of 1900 in which we have just given judgment. In fact the present accused was tried separately only because he was not arrested in time to be tried with the accused in that case. The evidence is, for all practical purposes, the same in both cases. In our judgment in that case we have fully stated our reasons for holding that the charges are not proved against the accused in that case or against the present accused. In the present case it is only necessary to add that the Sessions Judge has disbelieved the only conspiracy charged against the accused via. that on the 19th March 1899, but yet has convicted the accused because he finds that on other occasions, not charged, he conspired to bring about the murder. Evidence of other conspiracies may no doubt' be given as part of the proof of the conspiracy charged, but unless the conspiracy charged is proved the conviction in regard to it cannot be sustained.
43. We must allow the appeal, acquit the accused Subbi Reddi and direct his release.
Bhashyam Aiyangar, J.
44. (In Referred Trial No. 61 of 1900 and Criminal Appeals Nos. 878 and 1028 of 1900, and Referred Trial No. 9 of 1901 and Criminal Appeal No. 143 of 1901).--The first count against the first and second accused in Sessions Case No. 53 of 1900, as finally amended, runs to the following effect:--' That you the accused 1 and 2 on or about the 19th March 1899 entered into a conspiracy with the 9th accused in the same case and one Subbi Reddi the accused in Sessions Case No. 1 of 1901 to murder the deceased Ranga Reddy and that in pursuance of that conspiracy Ranga Reddi was murdered on 11th June 1900, and that you first and second accused have thereby committed an offence punishable under Sections 802 and 109 of the Indian Penal Code'. The first part of the 3rd count against the 9th accused in Sessions Case No. 53 of 1900 runs to the following effect:--'That you the 9th accused on or about 19th March 1899, entered into a conspiracy with. the first and second accused in the same case and one Subbi Reddi the accused in Sessions Case No. 1 of 1901 to murder Ranga Reddi in consequence of which the said Ranga Reddi, was murdered on 11th June 1900.' In Sessions Case No. 1 which was tried by a different Sessions Judge, the first count against Subbi Reddi the accused in that case ran as follows: 'That you the accused on or about 19th March 1899, entered into a conspiracy with the first, second, and ninth accused in Case No. 53 to murder Ranga Reddi in pursuance of which conspiracy Ranga Reddi was murdered on 11th June 1900, and thereby you the accused committed an offence punishable under Sections 302 and 109, Indian Penal Code.'
45. The first and second accused in the former case and the accused in the latter case were also respectively charged with the offence of murder itself and the ninth accused in the former with the offence of abetting that murder by giving information to the first accused in the same case of the movements of Ranga Reddi on the 11th June 1900. The second count in the former case was not drawn with sufficient precision so as. to charge first and second accused also with murder along with the accused Nos. 3, 4, 5, 6, 7 and 8. But it is clear that first and second accused were not misled by this inaccuracy, and the defect therefore is cured by Section 535(1) of the Criminal Procedure Code. In case No. 53 the accused 1, 2 and 9 have been acquitted of the so-called charge of conspiracy, and the Government has preferred Appeal No. 1028 of 1900 against such acquittal. In Sessions Case No. 1 of 1901 the accused has been convicted not only on the count of murder but also on the so-called count of conspiracy, and he has appealed in No. 143 of 1901 against his conviction on both the counts.
46. The count of conspiracy in both the cases proceeds on a misapprehension of the law bearing on the question as is evident not only from the wording of the count but also from the fact that the first and second accused in Sessions Case No. 53 and the accused in Sessions Case No. 1 are also charged with the substantive offence of murder. The law bearing on the question of conspiracy under Sections 107 and 109, Indian Penal Code, was considered by a Full Bench of this Court in the case of N.A. Subramonyan v. Queen Empress 10 MLJ 147 and I entirely concur with Davies, Benson and Moore, JJ., in their opinion that under the Indian Criminal Law conspiracy is a mere species of abetment when an act or an illegal omission takes place in pursuance of the conspiracy and amounts to a distinct offence for each distinct offence abetted by conspiracy.
47. Under the English law the agreement or combination to do an unlawful thing or to do a lawful thing by unlawful means amounts in itself to a criminal offence. The Indian Penal Code follows the English law of conspiracy only in a few exceptional cases which are made punishable under Sections 311 (Thug), 400 (belonging to a gang of dacoits), 401, (belonging to a gang of thieves), 402 (being a member of an assembly of dacoits) and 121A (conspiring to wage war). In these cases whether any act is done or not or offence committed in furtherance of the conspiracy, the conspirator is punishable and he will also be punishable separately for every offence committed in furtherance of the conspiracy. In all other cases, conspiracy is only one a species of 'abetment of an offence' as that expression is defined and explained in Section 108 and stands on the same footing as abetment 'by intentional aiding'. In regard to both these species of abetment, an act or illegal omission in pursuance of the conspiracy or for the purpose of intentional aiding, is essential. If two or more persons conspire, the gist of the offence of abetment by conspiracy is not only the conspiracy but the taking place of an act or illegal omission in pursuance of the conspiracy and in order to the doing of the thing abetted. If a person at one and the same time instigates another to murder ten or more persons or to steal watches in the possession of ten or more persons, he will certainly have abetted ten or more murders and abetted ten or more thefts. It is perfectly immaterial whether the instigation was at one and the same moment of time or at different times. Similarly if two or more persons conspire to commit the murder of ten or more persons or to steal the watches belonging to ten or more persons and one or more of them commits the murders or thefts in pursuance of that conspiracy, the others would have been guilty of as many abetments of murders or abetments of thefts as have been committed. In my opinion the test is not whether the instigation or conspiracy constituted one act, but whether the act or acts abetted by instigation or conspiracy would, if committed by a person capable in law of committing an offence with the same intention or knowledge as that of the abettor, amount to one offence or more offences than one. In the former case there would be but one offence of abetment, but in the latter case as many offences of abetment as the number of substantive offences.
48. Section 10 of the Indian Evidence Act has, in my opinion, no bearing on the question as to how far conspiracy to commit an offence or actionable wrong is an offence under the Indian Penal Code.
49. It is a startling proposition to say that a man remains chargeable as an abettor by conspiracy or otherwise although the may also be chargeable, and that not in the alternative but in the cumulative, as having committed the offence abetted. That is exactly what has been done in both the cases. The' first and second accused in Sessions Case No. 53 and the accused in No. 1 have been charged both with the substantive offence of murder on the 11th June and. the offence of conspiring to murder the deceased by murdering the deceased on the 1.1th in pursuance of such conspiracy. You can no more charge a man as an abettor as well as a perpetrator of the offence abetted, and that not in the alternative but in the cumulative, than you can charge a man with an attempt to commit an offence and the commission of that very offence. In this connection it will be well to draw attention to Section 114, Indian Penal Code, which provides that whenever any person, who if absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence. This section provides that he shall be deemed to have committed the offence itself and not simply that he shall be liable to the same punishment as if he had committed the offence.
50. In Sessions Cases No. 53 and No. 1, the first and second accused in the former and the accused in the latter are alleged to have been present when Ranga Reddi was alleged to have been murdered and in fact to have taken the most active and leading part in the perpetration, of murder. Under these circumstances, it is very strange that they should have been charged both with the murder of Ranga Reddi and with the abetment of such murder. The Public Prosecutor when this was pointed out, said that he did not press his appeal against the acquittal or seek to uphold the conviction of the accused in Sessions Case No. 1 of 1901 on the count of conspiracy, the accused Subbi Reddi in that case having been convicted and punished of both the substantive offence of murder and of abetment of the same by conspiracy, but that he relied on the instances of conspiracy proved with reference to the said counts as material evidence in regard to the charge of murder in both cases and also the charge of abetment of murder against the 9th accused in Sessions Case No. 53 by giving information of Ranga Reddi's movements on 11th June. It is unnecessary to consider the question of misjoinder of offences raised by the learned Counsel for the respondents in Appeal No. 1028. In my opinion Appeal No. 1028 should be dismissed and the conviction of Subbi Reddi in Sessions Case No. 1 on the count of conspiracy quashed. After overruling, for the reasons recorded in my judgment in Criminal Appeals Nos. 874, 875, 877 and 876 of 1900, the preliminary objection therein raised which is equally applicable to Appeal No. 878, I shall now consider the merits of the appeal preferred by Kona Timma Reddi, the 9th accused in Sessions Case No. 53 of 1900, in so far as such appeal relates to his conviction for abetment of murder by aiding the same by his act of giving information as to the movements of Ranga Reddi on the 11th June. The ninth accused is the undivided brother of the first accused who generally resides either at Tirunampalli or at Kundanakota. The 9th accused is as second grade pleader practising at Gooty. The 2nd accused is the brother-in-law of the first accused, having married the first accused's sister. Snbbi Reddi, the accused in Sessions Case No. 1 of 1901, whose residence is Kottapalli in the Cuddapah District, is also a brother-in-law of the first accused who married Subbi Reddi's sister. The 9th accused is supposed to have sent information from Gooty on the evening of the 10th June through the 4th, 6th and 7th accused or the 6th and 7th accused alone to his brother the 1st accused that Ranga Reddi would be going to Rayalcheruvu by the train next morning and thence by cart to Chimalavagupalli, his native place, where his father Chenna Reddi was residing, and that that would afford a capital opportunity for his being murdered on his way to his village. The case is that on receipt of such information the 1st accused in conjunction with his servants the 3rd, 4th and 5th accused and in conjunction with his brother-in-law the 2nd accused and his brother-in-law Subbi Reddi, the accused in Sessions Case No. 1 of 1901, and the accused 6, 7 and 8 who were employed for the purpose by the 2nd accused or Subbi Reddi,waylaid Ranga Reddi at about 11-80 on the 11th and murdered him when he crossed a vanka or small steam 1 miles from Chimalavagupalli. Of course, if the murder was not committed by all or any of the accused 1 to 8, it is not pretended that he abetted the murder of Ranga Reddi by others whoever they may be (vide 3rd count) and his conviction therefore cannot be upheld unless the conviction of the accused 1 to 8 of murder be upheld, and unless it is also proved that he abetted the said murder by sending information as alleged. It is an admitted and notorious fact that the deceased Ranga Reddi, B.A , and B.L. practising as a first grade pleader at Gooty and his father Chenna Reddi on the one hand and the 9th accused and his brother the 1st accused on the othev hand were on terms of bitter enmity for many years. Ranga Reddi and his father Chenna Reddi assisted by Narain Reddi, the' gumastah of Ranga Reddi, took a very prominent part in a ca e of false c ining brought in 1898 against the first accused and one Hussen Khan (prosecution witness No. 82) and the deceased Ranga Reddi also shortly before his death acted professionally in bringing to light' two instances of alleged sharp practice by the 9th accused in the exercise of his profession. Several other instances showing enmity between the two families are referred to by Chenna Reddi in his evidence (prosecution witness 2), and it is unnecessary to refer to them here. The two families are the most influential families of landholders in the northern part of the Tadpatri Taluq. The Kona family, that is, the family of the 1st and 9th accused, pays Rs. 1,000 or more to Government for patta land and the Battini family, that is, the family of Ranga Reddi, pays to Government a land revenue of Rs. 1,600. But the nature of the enmity as disclosed by the evidence in the case between the two families is not such as ordinarily leads to revenge by murder. But it is undoubted that Ranga Reddi and his father Chenna Reddi were in constant dread of being assassinated or grievously wounded by the Kona family, and they were especially so since the acquittal of the 1st accused and Hussen Khan in the coining case both in the Sessions Court and in the appeal by Government against the acquittal. When there was an unnatural death in 1899 in Chimalavagupalli and an inquest was conducted by the Sub-Magistrate Chenna Reddi stated that the deceased died from drinking the water of a spring poisoned by the 1st and 9th accused in order to kill him for he was known to be drawing his drinking water from that spring. The water of the spring was sent to the Chemical Examiner who found no poison in it. On the 15th of April 1900 Chenna Reddi sent petitions B and B1 to the Superintendent of Police and the District Magistrate stating that some of his enemies, with a view to plunder his house or to kill him, have been collecting persons for two or three months and that the Inspector of Police should be directed to keep a proper watch. The deceased Ranga Reddi was also giving out that he was apprehending danger to his life from the 9th accused and his family and for some time before his death actually gave up cycling, was always carrying a revolver and hired a Mussalman gymnast (P.W. 64) as a bodyguard.' There is no doubt that the enemies referred to by Chenna Keddi in his petitions Exhibits B and B1 were the 1st and 9th accused belonging to the Kona family though they are not named. The Inspector of Police, to whom Exhibit B was referred by the Superintendent of Police, returned the same to the Superintendent of Police with the following endorsement: 'There is a long-standing enmity between Tirumal Reddi of Tirunampalli (1st accused) and the petitioner. He seems to be labouring under some false delusions. I have also received a petition like this. I do not expect anything now. However I am watching the movements of both the parties.' This, 1 think, fully supports the inference to be drawn from the evidence in the case, viz., that there was a long-standing enmity between the two families and that Kanga Reddi's family was always suspecting the Kona family of murderous designs towards it. Apart from the specific instances in which it is alleged that the Kona family conspired or attempted to murder Chenna Reddi or his son Ranga Reddi, none of which has, in my opinion, been established, there is nothing to warrant the supposition that the 1st, 2nd or 9th accused or Subbi Reddi, the accused in Sessions Case No. 1 of 1901, was actuated by a desire to murder the deceased or Chenna Reddi by reason of their enmity towards them, and I have already stated that the nature of the enmity between the two families was not such as would ordinarily lead to revenge by murder. But it is undoubted that the deceased and his father were in a state of alarm, probably since the result of the coining case, and were for a long time suspecting that the 1st and 9th accused were designing to plunder them or even to kill them. Under these circumstances, it seems to me that the conviction of the accused in both the cases should depend entirely upon the value of the direct testimony of the eye-witnesses, and the evidence of the so-called eye-witnesses to the abetment of the murder from Gooty by the 9th accused is extremely weak and inconclusive. That Chenna Reddi, the prosecutor, should, as soon as he heard of the brutal murder of his son in broad daylight when ho was approaching his house in his cart sent to fetal him from Eayalcheruvu, have suspected and believed that his enemies the 1st and the 9th accused must have been at the bottom of this murder, theugh the eye-witnesses did not see them taking part in the murder or being present at the murder, is only natural and is in accordance with his pre-sentiment. Of course, if the accused were the real perpetrators of the marder, there can be no doubt that it must have been the outcome of revenge. If the accused are not the perpetrators of the murder, the evidence with regard to it does not, in my opinion, lay the foundation for any reasonable hypothesis as to who committed the murder or from what motive the murder was committed. The evidence of the Hospital Assistant, who examined the corpse shortly after the murder, leaves no room for doubt that Ranga Reddi was brutally murdered. It is also in evidence that the steel trunk belonging to Ranga Reddi was on the ground near the cart with the lock broken open. But its contents, chiefly cloths and other articles as well as a watch and chain on the person of Ranga Reddi, an inventory of which is annexed to Exhibit L, the inquest report, were not stolen, assuming, of course, that the trunk contained nothing else except these mentioned in the list.
51. Turning now to the evidence against the 9th accused that he abetted the murder, it is an admitted fact that he returned from Mysore only on the morning of the 10th, he having been absent for about a week at the Mysore Royal Wedding. The prosecution witnesses 68 and 69 are called to say that the 4th, 7th and 8th accused were at Munro's Choultry in Gooty on the 9th and 10th and that they said they had come to see the 9th accused. The judge rightly rejects the evidence of these two coolies hanging about the choultry, considering it incredible that persons who had come to consult the 9th accused about the murder would have informed these witnesses that they had come to see the 9th accused, but the judge considers that the testimony of P. W. 71 that he saw the 7th and 8th accused in the house of the 9th accused on the 10th is worthy of more consideration. But he observes that if his evidence stood alone his testimony might well be doubted, but he makes up his mind to act upon his testimony because his companion Nagi Reddi (P.W. 78), who is a witness against whom nothing can be said, corroborates the 71st P.W. as to the three visits paid by him to the 9th accused though not as to seeing accused 7th and 8th with the 9th accused on the night of the 10th or even any where at Gooty on that day. There is no value in Nagi Eeddi corroborating the 71st P.W. as to the three visits paid by them to the 9th accused for getting from him some money alleged to be due to them by Subbi Reddi, the accused in Sessions Case 1 of 190.1, when be does not corroborate the testimony of the 71st P. W. that the 7th and 8th accused wore seen with the 9th accused on the night of the 10th in his house at Gooty. On the contrary, the testimony of Nagi Reddi goes some way towards negativing the presence of the 7th and 8th accused in. the house of the 9th accused on the night of the 10th. Even assuming that the 7th and 8th accused were seen speaking to the 9th accused in his private room on the evening of the 10th, it simply proves their presence in the house of the 9th accused on the night of the 10th. The 71st P. W. does not speak to any conversation the 9th accused had with them, and even assuming that the 7th and 8th accused took part in the murder of Ranga Reddi next day near Chimalavagnpalli, whore is there any evidence to show that the 9th accused sent any information through them to the 1st accused in view to such, information being utilised for waylaying and murdering Ranga Reddi? The 9th accused went to Pyapalli Sub-Magistrate's Court on the day of the murder of Ranga Reddi, viz., the 11th June. It is 11 miles from Gooty and more than twenty miles, as the crow flies, from the scene of murder. Some witnesses were examined as to the 9th accused meeting certain persons and having certain mysterious conversation with them about 2 P.M., and such evidence was adduced by the prosecution in view to show that he was then informed that arrangements had been made for the murder of Ranga Reddi and that by that time the murder would have taken place. The Sessions Judge rejects this evidence, and rightly so, as being entirely unworthy of credit. The gymnast who was employed as a bodyguard by Ranga Reddi some time before his death also gives evidence as 64th P. W. to the effect that while he was passing by the house of. the 9th accused on the night of the 10th accompanying the cart in which Narayana Reddi, the gumastah of Ranga Reddi, was going to the Railway Station at Gooty, the 9th accused asked him whose cart it was, and that when he told him that Narayana Reddi was going in it, the 9th accused asked the witness why Narayana Reddi was going away so soon, and that he in reply informed the 9th accused that Ranga Reddi was of ring to Rayalcheruvu next morning and had sent his gumastah Narayana Reddi to bring a cart for him to that station, and in cross-examination the witness stated that though he knew that Ranga Reddi and the 9th accused were enemies, he gave the 9th accused in formation about his master's journey because the witness thought that his master had nothing to fear in daylight. This evidence is simply let in to show that the 9th accused got authentic information about Ranga Reddi's movements on the day of the murder. The evidence of this witness is so worthless that the Sessions Judge does not even refer to it. How upon such, evidence the 9th accused was found guilty of abetting the murder surpasses one's comprehension. Though the evidence against him of abetment is nothing, yet the Judge is influenced by certain alleged antecedent conduct of the 9th accused in instigating the murder of Ranga Reddi or conspiring to murder him (paragraph 31) and he is also influenced by the so-called confessions of the 3rd and 6th accused. The Judge refers to the obvious conduct of the 9th accused in paragraphs 31, 24 and 37. The first conspiracy is sought to be established by the evidence of Hussen Khan (P. W. 82) who was the co-accused with the 1st accused in the false coining case and the date of that conspiracy is given as 19th March 1899. In the false coining case he was defended at the expense of the 1st accused and soon after the admission of an appeal against the acquittal he executed a pro-note in favour of the 9th accused for Rs. 500 on the 19th March 1899 for his share of the legal expenses which must have been very heavy. He now gives evidence that he executed that pro-note as his share of the expenses for murdering Ranga Reddi. His account is that the 9th accused called him to Tirunampalli and that the 1st and 2nd accused and Subbi Reddi were present with the 9th accused when he saw the 9th accused. The 9th accused thereupon tells the witness that the appeal against the acquittal was preferred through the enmity of vakils Ranga Reddi and Kesava Pillai and that there would be no safety till these were killed. The 9th accused is further alleged to have said that the witness must contribute Rs. 1,00 and two bold and strong men ; and thereupon the witness executes the pro-note for Rs. 500 as his pecuniary contribution for murdering Ranga Reddi ; and the witness says that he also agreed to provide two bold men, but that after the appeal against the acquittal was dismissed, he became indifferent about murdering Ranga Reddi and therefore refused to have anything more to do with the conspiracy to murder Itanga Reddi. A perusal of his evidence will show that from beginning to end it is a tissue of falsehood and the Judge rightly discredits his evidence. Another attempt alleged to have been made by the 9th accused to poison Ranga Reddi is sought to be established by the evidence of Surayya (P.W. 88) who was for a long time employed as a cook by Ranga Reddi but was dismissed four or live years ago. Five or six months before Ranga Reddi's murder, this cook went to Gooty to beg for his marriage expenses from- the two vakils, viz., the deceased Ranga Reddi and the 9th accused. He says that on that occasion he cooked two days in the house of Timma Reddi and that on the third day the 9th accused promised to pay all the expenses of the marriage if he would contrive to put some poison into Ranga Reddi's food or drink. The witness declined to comply with this request, and thereupon the 9th accused told him that he had spoken in jest and gave the witness Rs. 10 to make him hold his tongue. This is a ridiculous story narrated by the witness who says that Ranga Reddi dismissed him. Whether the Judge believes him or not, is not clear, but the Judge evidently thinks that he can persuade himself to believe this witness, because the 84th I'. W. is produced to depose that when the two were on their way to Kodur for some festival, the 83rd P. W. on hearing of the murder of Ranga Reddi repeated to him the conversation he had at Gooty with the 9th accused live or six months ago as to poisoning Ranga Reddi. This evidence ought not to have been admitted as corroborative evidence under Section 157 of the Evideuce Act as it was not made at or about the time of the alleged conversation. It is simply absurd to suppose that a man of the position of the 9th. accused, who is a vakil, would make such an insane attempt to poison his rival vakil Ranga Reddi.
52. Another plot, a few months before the murder of Ranga Reddi, sought to be established by the evidence of Nadipi Appayya is of Chimalavagupalli (P.W. 62) who was employed by Chenna Reddi to guard his house. He says that, when he was in the service of Chenna Reddi, one Malla Reddi, the husband of 1st accused's maternal aunt, came to him six months ago and asked him what amount he owed to his master Chenna Reddi and proposed to him to lend that amount at low interest if the witness would do something for Malla Reddi. The witness declines to accept the kind offer, but Malla Reddi nevertheless takes him to Tippareddipaliem that day and the witness meets there, the 1st and 2nd accused and Subbi Reddi. The 1st accused offers to give Rs. 800 to the witness at a low rate of interest and tenders Rs. 20 to the witness in cash and forces it into his hands directing Malla Reddi to take the witness away for the present. The witness returns home and informs Chenna Reddi of all this. Chenna Reddi tells the witness to pretend to carry out the plot and inform him whatever he learns about it. Four days later Malla Reddi again takes the witness to Tippareddipaliem and the 1st accused asks the witness to leave open the village gate and the doofs of Chenna Reddi's house at night in order that the 1st accused might kill Clienna Reddi. The witness does not agree to it, but the 1st accused entertains him at breakfast and assures the witness that he will treat him as 'his younger brother.' Thereupon the witness agrees to the proposal and returning home informs Chenna Reddi of all this. Chenna Reddi tells the witness to suggest to the conspirators to come and attack Chenna Reddi the next night when his sons would be absent. The witness informs the 1st accused of this, and the 1st accused adopts the suggestion and says that he would come with his men the next night. At 10 P.M. the next night Chenna Reddi, his sons and the witness wait with loaded guns at the gate of the village making three loopholes in the parapet of the gate for using the guns. But nobody comes that night and next morning Chenna Reddi gets angry with the witness and accuses him of treachery. The witness immediately goes to Tirunampalli and meets the 1st and 2nd accused and Subbi Reddi and takes 'them to task. They in reply say 'we feed and pay our men for months, but they will not go into Chenna Reddi's house unless we go with them, We cannot depend on them. If you induce Chenna Reddi to go to Tadpatri, we ourselves will kill him on the way,' and the 1st accused further added that he would not go into the village because he was known to everybody. This information is conveyed to Chenna Reddi who says that he will leave on the following Wednesday to see his brother Appi Reddi. who was sick at Tadpatri. Information is given to the 1st accused by the witness as regards the movements of Chenna Reddi to Tadpatri and. after giving information to the Police Inspector of the trap laid to catch the 1st and 2nd accused and Subbi Reddi at Tadpatri, they all remained at Tadpatri car Wednesday night, but nobody comes that night to attack Chenna Reddi, and Chenna Reddi again takes the witness to task for deceiving him and returns to Chimalavagupalli on the Friday following. The witness goes on Saturday morning to Tirunarnpalli and sees the 1st accused who abuses the witness and says that Chenna Reddi had spoken to the Inspector and the Inspector in his turn spoke to the Deputy Collector and the Deputy Collector in his turn spoke to the 9th accused about the plot ; and the 9th accused spoke to him, the 1st accused, and the 1st accused threatens to cut off the legs of the witness if he comes to him again. There is no evidence that the 1st and 2nd accused, or Subbi Reddi, or any of their men, were seen at Tadpatri that night, but the 9th accused who was travelling by the train from Gooty to some station in the Cuddapah District sees the Deputy Collector at about 11 P.M. in the night on the platform at the Tadpatri Railway Station, and alighting from his carriage meets the Deputy Collector (P.W. 63) and asks him to adjourn some of his appeals. The Deputy Collector gives evidence that the Tadpatri Inspector told him in the Taluq Kutcheri that some people were to come from the Cuddapah District at the instance of the 1st accused to murder Chenna Reddi that night and that he was looking out for them. At 11 P.M. the Deputy Collector meets the 9th accused at the Railway Station and tells him of what he had heard from the Tadpatri Inspector. The 9th accused tells the Deputy Collector that there was no foundation for it, and that as the 1st accused was asked to intercede and bring about a reconciliation between two factions in some village in the Cuddapah District, some of the men from that village were recently coming to the 1st accused in connection with that matter. He also tells the Deputy Collector that a Kamma household servant of Chenna Reddi, referring apparently to Nadipi Appaya, was an enemy of Chenna Reddi and might do some mischief laying the blame on the 1st accused and his people. The Deputy Collector adds that when he informed Ranga Reddi of this, Ranga Reddi merely laughed at it. The Tadpatri Inspector who was examined as P. W. 90 is not asked a word about the Tadpatri plot and trap, or about the information he gave to the Deputy Collector about it. Of course, I accept the evidence given by the Deputy Collector as I see no reason to distrust it. The Judge draws an unfavourable inference against the 9th accused from the reply he gave to the Deputy Collector and considers that reply as conclusive confirmation of Nadipi Appayya's story. The Judge also considers that the plot against Chenna Reddi that night was not carried out, probably because the 9th accused found some way of conveying a warning. In my opinion the 9th accused was not incautious in making the reply which he did to the Deputy Collector as supposed by the Judge. If there was really a plot for murdering Chenna Reddi that night at Tadpatri, that is not the kind of reply which he would have made. It seems to me that the 9th accused made the communication to him which is supposed to have been incautious, in the honest belief that the servant of Chenna Reddi referred to by him in his conversation with the Deputy Collector was an enemy of Chenna Reddi, who was bent upon doing harm to Chenna Reddi, and, taking advantage of the well-known enmity between the Kona and the Battini families, and more particularly of Chenna Reddi's readiness to believe that the Kona family were bent upon ruining him, calculated upon successfully laying the blame at the doors of the Kona people. This story of Nadipi Appayya's is certainly a very curious one. It, or something like it, was possibly a hoax which Nadipi Appayya played upon Chenna Reddi. At any rate, it is impossible to believe that the 1st accused, or he, in conjunction with the 2nd accused and Subbi Reddi would take Nadipi Appayya into confidence in the manner alleged, and the portion of the story which is most suspicious is that relating to the 1st accused's complaint to Nadipi Appayya that his men would not go and murder Chenna Reddi unless he himself and the 2nd accused and Subbi Reddi accompanied them and took part in the murder of Ranga Reddi. It looks as if this was invented to account for these three persons accompanying the other accused in broad daylight to murder Ranga Reddi and taking a leading part in the perpetration of the murder. The so-called confessions of the 3rd and 6th accused ought not to have been used against all or any of the other accused as the Judge has in reality, though unconsciously, done, and we expressed it as our opinion during the course of the argument that under the circumstances under which they were obtained they should not be used oven as against the 3rd' and 6th accused respectively.
53. In my opinion the conviction of the 9th accused is supported by no evidence whatever and it ought to be quashed.
54. I shall now proceed to consider the conviction of Subbi Reddi for murder in Sessions Case No. 1 of 1901. So far as he and the 2nd accused (in Sessions Case 53) are concerned, there was no enmity between them and Ranga Reddi and his father. They are supposed to have joined the 1st accused in murdering Ranga Reddi simply because the 1st accused was their brother-in-law, and he was bent upon taking revenge by murdering Ranga Reddi or Chenna Reddi or both. Nor is it alleged that they took any part in the alleged conspiracies already alluded to except by reason of their relationship with the 1st and 9th accused in Sessions Case 53. Subbi Reddi like the 1st and 2nd accused is a man in a respectable position in life. For the reasons already stated, his conviction must rest solely upon the value to be attached to the evidence of the eyewitnesses to the murder. Their evidence having been fully commented upon by my learned colleagues in their Judgment in the other R.T. No. 61 of 1900, I shall content myself by stating briefly my view of their evidence, In connection with the eye-witnesses the question which has first to be considered is whether Narayana Reddi was an eye-witness to the murder. The Judge who tried Sessions Case No. 53 has come to the conclusion that he was not, but on substantially the same evidence the Judge who tried Sessions Case No. 1 has come to the conclusion that he was an eye-witness. On this question I have not been able to come to any definite conclusion. For the reasons mentioned by my learned colleagues which are based chiefly upon Exhibit 5, it seems to me more probable that he was not, than that he was, present when the murder was committed. If, as alleged by the prosecution, he in fact accompanied Ranga Reddi in the carriage and was present when he was murdered, that affords, in my opinion, almost conclusive proof that the 1st and 2nd accused in Sessions Case No. 53 of 1900 and Subbi Reddi, the accused in Sessions Case No. 1 of 1901, were not the persons, or among the persons, who murdered Ranga Reddi in broad daylight. Assuming, for the sake of argument, that notwith standing their position and notwithstanding the fact that, if they were so disposed, there could be no insuperable difficulty in their hiring or employing suitable persons to murder Ranga Reddi, they were so rash, and I may add, so insane, as to accompany their servants, or hirelings in broad daylight to murder Ranga Reddi, 1 find it impossible to force a conviction upon my mind that after murdering Ranga Reddi, the)' would have spared, Narayana Reddi who is well acquainted with them and to whom at any rate the 1st accused owed as great a grudge as he did to Ranga Reddi in connection with the false coining case. Motives of self-protection as well as motives of revenge would have prompted them to assassinate Narayana Reddi at once after murdering Ranga Reddi, and the Public Prosecutor has not been able to suggest any explanation as to why they spared Narayana Reddi and allowed him to go scot-free to give forthwith evidence against them and identify them. That Hanumantu (P.W. 20) was the handyman who was driving the cart when it was stopped and Ranga Reddi was dragged out of it and murdered, is an undoubted fact. He was also well acquainted with the above three persons, but none of them owed him any grudge as in the case of Narayana Reddi. But motives of self-protection and the facilities that existed for murdering him also would surely have dictated to them the expediency of murdering him, and the persons who were capable of committing such a brutal murder as that of Ranga Reddi would scarcely have refrained from commiseration or otherwise from murdering Narayana Reddi and Hanumantu and allowed them to depart scot-free from the scene of murder. On the hypothesis that the above three persons were not the murderers or among the murderers, but that the persons who murdered were some other persons who were commissioned to murder Ranga Reddi, I could well understand Narayana Reddi and Hanumantu who were not acquainted with the persons who murdered Ranga Reddi being allowed to escape witheut being murdered. I am also of opinion that, if the above three persons had been the murderers and they were identified as they must have been by Narayana Reddi and the bandyman, either of them would at once have been sent in a carriage if they were unable to walk to the Sub-Magistrate who was then known to be in camp at Jutur with the Deputy Collector, or to the Police Station at Yadiki, to prefer a complaint stating that he had seen the above three persons murdering Ranga Reddi. The evidence in the case conclusively shows that Chenna Reddi is a man who is familiar with magisterial cases and knows perfectly well when, where and to whom complaint should be made. Of course, on the hypothesis that the above three persons were not among the murderers, I could well understand the presence of Narayana Reddi and the bandyman at the scene of murder and their inaction till after 9 P.M. on the night of the murder when after the arrival of the Tadpatri Inspector a complete inquest was held. It seems to me also incredible that persons of the position in life which the above three persons occupy, would in broad daylight accompany their servants and hirelings to murder Ranga Reddi when there was no overwhelming necessity compelling them to adopt this extraordinary course as the only feasible mode for accomplishing their object of murdering Ranga Raddi, and I think this is all the more incredible on the part of persons who knew perfectly well that Chenna Reddi, was always suspecting them of conspiring to murder himself and Ranga Reddi, and that, even if they did not accompany the actual assassins, suspicion would always be directed against them. If the charge against them were only one of abetment of murder by the other accused in the case, there will be nothing intrinsically improbable in it. I attach no value whatever to the evidence of Narayana Reddi, the gumastah of Ranga Reddi and an enemy of the 1st accused, nor to the evidence of a dependent of Chenna Reddi and one of no position, which is opposed to the almost irresistible inference to be drawn from the intrinsic improbabilities above pointed out.
55. As regards the two Rayampalli witnesses (viz., P. Ws. 18 and 19) who were the clients of Ranga Reddi and who accompanied him in the carriage from Rayalcheruvu and alighted from the carriage at a distance of about two miles from the scene of murder and were following the carriage, I cannot attach much value to their evidence. They admittedly were at some distance behind the cart when Ranga Reddi was waylaid and murdered, and in my opinion probably at a greater distance than they say. They could not be expected to be able to identify the nine murderers with none of whom they were , previously acquainted, and I do not attach any value to their subsequent identification of the 1st and 2nd accused in Sessions Case No. 53 of 1900 and of several other accused in that case. I have no doubt that Chenna Reddi and others in the village of Chimalavagupalli believed honestly and in good faith as the expression 'good faith' is defined in the General Clauses Act No. X of 1897, theugh not in the sense in which it is defined in the Indian Penal Code, that the 1st and 9th accused and their relations the 2nd accused and Subbi Reddi wore at the bottom of the murder. The Rayampalli witnesses would of course have actively sympathised with Chenna Reddi in his bereavement (which resulted immediately from Ranga Koddi having accepted their professional engagement in the criminal appeal which was to have been heard at Rayampalli on the 11th) and shared in the conviction that the said persons were at the bottom of the murder. They remained in the village of Chimalavagupalli the whole of that day and. night and statements were taken from them at the inquest at about midnight, and in that statement there were made to commit themselves to a promise that they would identify the murderers as they observed them well, and as three of them had whiskers, evidently referring to the 1st and 2nd accused and Subbi Reddi. They depart to their village far off after attending the Magistrate's Court on the 12th in connection with their appeal, and the prosecution 39th witness, one of the well witnesses and one who has been actively assisting Chenna Reddi in this prosecution, is deputed to fetch the Rayampalli witnesses. He has recourse to the Village Munsif of Undabunda (58th defence witness) who is an influential and wealthy landholder to prevail upon him to persuade the two Rayampalli witnesses who were making excuses to the prosecution 39th witness to accompany him to Chimalavagupalli. The 58th D.W. says that he asked Hanumantappa, one of the two Rayampalli witnesses, to go to Chimalavagupalli with the 39th prosecution witness. Hanumantappa tells the witness that his father was suffering from fever and had pain in the leg. The witness says that the other witness also had. fever, that he persuaded him to go, and that when he was persuading him to go Ramanna said 'What do you want mo to say about what I have not seen?' The Sessions Judge considers that the evidence of this witness is entitled to weight (vide paragraph 11) and says that D.W. 58' is the wealthy Munsif of an adjoining village, who says that on the 15th (June) ho persuaded these Rayampalli men to go with his friend (P. W. 39) who had come from Chimalavagupalli to take them to Tadpatri. They wore unwilling to go, saying that they had fever, and did not want to say that they had seen what they had not seen' * * * 'It may be true that they were unwilling to go, when they had fevor and were expecting the south-west monsoon for their fields; but I cannot accept the Munsif's deposition as counterbalancing their own statements at the inquest and to the Yadiki Sub-Magistrate before they left the spot. They had actually identified Madargadu (3rd defendant) who was then shown to them, and professed their ability to identify the others.' I believe that the evidence of this witness is substantially true. No doubt the two Rayampalli witnesses committed themselves to certain statements in support of the prosecution at the inquest hold on the night of the day of murder, and also in certain depositions taken from them by the Yadiki Sub-Magistrate, from one of them at 1-30 A.M., on the 12th, and from the other after daybreak on the 12th. Of course, after they returned home they were naturally unwilling to mix themselves up as witnesses in the case if they could avoid it, for they would be bound to adhere to their former statements even if they were made falsely at the impulse of the moment and under the moral pressure then brought to bear upon them (strengthened as such pressure was by the appearance in person of the 3rd accused and his confession before the Magistrate in the presence of a large crowd). T attach no importance whatever to the identification of the 3rd accused at the scene of murder by the Rayampalli witnesses and by Narayana Reddi and Hanumantu when the inquest took place at the scene of murder after 9 P.M., on the day of murder. The 3rd accused was brought to the scene of murder at about 2-30 P.M., on the day of murder as a person who had made a confession implicating among others the 1st and 2nd accused in Sessions Case No. 53 and Subbi Reddi, the accused in No. 1. It is no wonder then that when he was pointed to as the person who confessed to the murder he was readily identified by the Rayampalli witnesses and by Narayana Reddi and Hanumantu. Nor do I attach any importance to the identification by the Rayampalli witnessses of the 1st, 2nd, 4th and 5th accused at the Tadpatri Ta1uq Kutcheri before the Magistrate on the 18th of June. These prisoners were in the Yadiki Police station near Chimalavagupalli up to the 18th of June when they were taken to Tadpatri. The Rayampalli witnesses were brought from their village to Chimalavagupalli by the 39th P.W. before the 18th June, theugh it does not appear on what exact date. In a prosecution conducted by the police, in which certain suspected persons have been arrested by the Police and remanded to jail, I attach very little value to the Oriental mode of having these prisoners identified by certain would-be eyewitnesses to the alleged crime. As far as Subbi Reddi, the accused in No. 1, is concerned,the Rayampalli witnesses do not identify him. As regards the two witnesses who are ryots of Chimala-vagupalli (P.Ws. 21 and 22) who say that they came up after the murder and saw the accused running away, and that they saw all the accused in Sessions Case No. 53 and Subpi Reddi in Sessions base No. 1 concealing themselves in a well near the scene of murder, I do not think it necessary to comment upon their evidence and expose its barefaced falsity, for the Judge places no reliance upon their testimony. Such being the nature and position of the eye-witnesses who profess to have seen the alleged murderers immediately before the murder when they were concealing in a well, or to have seen them actually committing the murder, or immediately thereafter while they were running away, and such being the strong improbabilities in the supposition that the 1st and 2nd accused in No. 53 and Subbi Reddi the accused in No. 1 directly committed the murder and allowed both Narayana Reddi and Hanumantu to depart witheut murdering them, if both of them as alleged by the prosecution were present or witheut murdering Hanumantu if he was the only person that was present, it is hardly necessary to consider the conduct of Chenna Reddi after hearing of the murder, or other incidents subsequent to the murder. But as the Public Prosecutor lays particular stress upon Chenna Reddi having named, a few hours after the murder, the 1st and 2nd accused in Sessions Case No. 53 and Subbi Reddi the accused in Sessions Case No. 1 as three of the murderers besides the live others, and upon the 3rd accused in his confession on the very day of the murder having named not only the above three persons as the murderers, but also named the 4th, 5tb, 6th and 7th accused and also included the 8th accused witheut naming him in his confession, I shall make a few observations on this part of the case. As regards the naming of the above three persons, the inventive powers of Chenna Eeddi need not be taxed very much. These names will naturally and bona fide strike him at once, and the only question with him will be how to bring home the charge to these persons who, according to his sincere conviction, must have been at the bottom of the murder. As regards the 3rd, 4th and 5th accused, they were the servants of the 1st accused, and there was no difficulty in suggesting their names some time after the hearing of the murder. But the Public Prosecutor lays particular stress upon the 6th, 7th and 8th accused who are referred to as the three Regadipalli men having been included by the 3rd accused in his confessional statement, and he says that it is impossible that the 3rd accused could have included the names of these persons who must have been strangers to himself unless they were his associates in the murder. It is unreasonable to expect the accused to account for the inclusion of these three names by. the 3rd accused, and it is impossible for them to suggest how their names were discovered and suggested though they were not the real culprits. In criminal prosecutions it is not at all unusual that several persons besides the ostensible prosecutor pull the strings from behind actuated by various motives. I do not believe that the so-called confessional statement of the 3rd accused was voluntary or that it is true. Lingayya (P.W. 46), the Village Munsif of Chimalavagupalli, or rather of the village of which Chimalavagupalli is a hamlet and the gumastah of Appi Reddi, the brother of Chenna Reddi, was at the bottom of getting the 3rd accused to make a confessional statement, and admittedly before he got hold of the 3rd accused at Yadiki, Chenna Eeddi sent a communication about the murder to Lingayya through his son that the 1st accused and his men had cut Ranga Reddi's throat at Rallavagu. The 3rd accused's so-called confessional statement does not incriminate himself and, it cannot therefore be taken into consideration against the co-accused in Sessions Case No. 53 and much less against Subbi Reddi in Sessions Case No. 1 of 1901. It is enough therefore to say that it cannot legally affect any of the other accused theugh it may be used as evidence against the prosecution itself to show how the prosecution case was develyped from time to time. As regards the conduct of Chenna Reddi soon after the hearing of the murder, the evidence of Papodu (P.W. 72) is thennost important as well as Exhibit 5 the statement taken at Jutur by the Magistrate undoubtedly at 2-30 P.M., on the day of murder. Papodu is a near relative of Chenna Reddi theugh not a man of any particular position and Chenna Reddi sent him before he went in a cart to the scene of murder to inform the Deputy Collector and the Yadiki Sub-Magistrate who were then in camp at Jutur, of the murder. Papodu says that he had gone to the seene of murder before he was sent to Jutur and that on his way to the seene of murder he also met Hanumantu, the bandyman. By the time that Papodu was sent Chenna Reddi was in possession of all the information that the eye-witnesses gave him, namely, Narayana Reddi, Hanumantu and the two Rayampalli witnesses. It is hardly credible that, if the eye-witnesses had recognised the murderers and in particular if they recognised the 1st and 2nd accused in No. 53 and Subbi Reddi, the accused in No. 1 among the murderers, Chenna Reddi would not have sent that information at once in writing to the Sub-Magistrate through Papodu. In fact as I have already observed, ho would have sent one of the eye-witnesses direct to the Deputy Magistrate and Sub-Magistrate to prefer a complaint accusing the above throe accused among others. It is also incredible that Papodu himself would not have heard of the names in the village before he started and from the bandyman whom ho had met if the handyman had seen the above three persons committing the murder. The explanation which Papodu now gives that he did not give the names of the murderers to the Sub-Magistrate because he had not heard from the eye-witnesses, is a mere idle excuse. The truth is that before Papodu was sent to Jutur which must have been at about 12-30 the eye witnesses did not name the above three persons or any other persons as the murderers for the very best of reasons, namely, that they, or at any rate the bandyman who undoubtedly was an eye-witness, did not recognise any of the murderers and Chenna Reddi did not by that time make up his mind to incur the legal responsibility of accusing the abovenamed three persons. The Public Prosecutor strongly relies upon Exhibit E(1) which purports to be a telegram sent to the District Magistrate by Chenna Reddi at 3 P.M. on the day of murder in which the names of the 1st and 2nd accused and Subbi Reddi are memioned as having, in company with five others who. are. not ' named, murdered Ranga Reddi that day. The Assistant Station Master and Signaller of the Pennar Railway station, from which the message was sent to the District Magistrate of Anantapur, gives evidence as prosecution 3rd witness that on the 11th he received between Hand 1-30: P.M. three telegrams from Balaranga Reddi, son of Chenna Reddi, one being to Kesava Pillai at Gooty one to the District Magistrate at Anantapur and the third to one Basireddi at Anantapur. He Saya that he sent Basireddi's and Kesava Pillai's immediately but delayed the transmission of the message to the District Magistrate until Balarangayya's man brought 8 annas more at about 3 P.M. the amount of Rs. 5 originally brought by Balaranga Reddi having been found deficient by 8 annas to cover the cost of all the three telegrams. Three receipts were granted for three message, the counterfoils of which Nos. 76, 77 and 78 are filed as Exhibit G. If this evidence . be accepted, Chenna Reddi must have sent the District Magistrate's message from Chimalavagupalli between 12-30 and 1 P.M. But as it appeared from his cross-examination in Sessions Case No. 1. of 1901 (he, strange to say, not having been cross-examined in Sessions Case No. 53) that Balaranga Reddi did not know English, that he brought the three messages written on one and the same piece of. paper and that he himself copied them in the printed message forms and obtained Balaranga Reddi's signature for Chenna Reddi, Venkata Ranga Reddi, B.A., who it was represented wrote the three messages on a chit, was examined in this Court on the 11th April, and K. lyasami Iyer, the Principal Station Master and Signaller whose signature was found on the counterfoil of the receipt No. 78 for the District Magistrate's message, the counterfoil of the other two receipts for the messages to Basireddi and Kesava Pillai bearing the signature of the Assistant Station Master, was also examined on the 17th April in connection with these messages. Venkata Ranga Reddi, the eldest son of Chenna Reddi, says that as desired by his father he prepared the three messages on one and the same bit of paper witheut mentioning the name of the sender and. sent the same to the Railway Telegraph Office by his brother Balaranga Reddi and that he came back and sent by a servant the extra 8 annas which was required to defray the cost of the telegram. Iyyasami corroborates the Assistant Station Master and says that he saw and read the chit and was present when the three telegramswere despatched by the Assistant Station Master himself and that the transmission of the message to the District Magiatrate was delayed on account of the deficiency of 8 annas. His evidence is that of a partisan of the Assistant Station Master. Venkata Ranga Reddi says that Narayana Reddi came upctairs on the day of the murder and mentioned to him the names of the 1st and 2nd accused and Subbi Reddi and also mentioned that two of the others were Yadiki men. He also says that the bandyman came upstairs and spoke to him about the murder and he admits that he was in the habit of preparing and sending telegrams. Neither Chenna Reddi nor Narayana Reddi nor the bandymah alludes to Venkata Ranga Reddi, and it is clear from the bandyman's evidence that he never went into Chenna Reddi's house that day and certainly he was not in a condition to go limping upstairs. Iyyasami says that he was well acquainted with Chenna Reddi's family, that he knew the importance and urgency of the message to the District Magistrate and that if Balaranga Reddi had asked him to advance from his pocket the 8 annas witheut delaying the transmission of the message, he would have done so. He also says that by omitting four words in the message consisting of articles, &c;, which I pointed out, the message could have been sent for Rs. 3 witheut in the last affecting the full meaning of the message and the necessity for the extra 8 annas easily avoided and that Balaranga Reddi might sign the message with these insignificant omissions, and he adds that he would have suggested this course if the message had been an ordinary private message, but as this was an important message to the District Magistrate, he did not suggest this course. He also says that there was no particular reason why the receipts for the messages to Kesava Pillai and Basireddi were signed by the Assistant Station Master and the receipt for the message to the District Magistrate was signed by himself. He also says that the Assistant Station Master first began to write and was writing the receipt for the message to the District Magistrate when Balaranga Reddi said that he had better send the other two messages first and that thereupon the Assistant Station Master altered the receipt into one for the message to Kesava Pillai at Gooty. How Balaranga Reddi came to know that the receipt which was being written first was in respect of the message to the District Magistrate and why the Assistant Station Master did not utilize it for the other message sent to Basireddi at Anantapur but altered Anantapur into Gooty to which station the message to Kesava Pillai had to be sent, are not explained. The Public Prosecutor lays great stress upon what he calls the internal evidence afforded by the first of the counterfoils Nos. 76, 77 and 78 in support of his theory. I am not satisfied that the internal evidence is at all conclusive in the matter. The Assistant Station Master in the evidence given by him in Sessions Case No. 53 of 1900 says as follows referring to the first of the three receipts:-- In the receipt book I wrote Anantapur instead of Gooty and corrected it.' This clearly means that in preparing the receipt for the Gooty message to Kesava Pillai he made a mistake in addressing it to Anantapur and then altered Anantapur into Gooty. The Public Prosecutor points out that in his evidence before the Committing Magistrate, the Assistant Station Master stated that he changed Anantapur to Gooty, because when he was filling the receipt of the counterfoil No. 76 as the receipt for the message to the District Magistrate, Balaranga Reddi said that the other two telegrams were more urgent and should be sent first and that he expressed himself inaccurately before the Sessions Judge or that the Sessions Judge recorded his evidence inaccurately. It may be so, or it may be that the truth escaped his lips when giving evidence before the Sessions Judge and that he really and correctly stated that in preparing the receipt for the message to Kesava Pillai he entered Anantapur by mistake and corrected it into Gooty. The other internal evidence relied upon is that the figure '28' (the number of words in the message to the District Magistrate) is altered to '8' (the number of words in the message to Kesava Pillai) and the figures 'Rs. 3-8-0' (the charge for the message to the District Magistrate) are altered to 'Rs. 1-0-0' (the charge for the message to Kesava Pillai). I am not satisfied on an inspection of the counterfoil 76 that '28' was altered into '8' an alteration which could have been very easily done by simply striking out '2' before '8' or that '3-8-0' was altered into '1-0-0.' It is quite possible that the original figures were 8 and 1-0-0 and that they were subsequently tampered with in such a way as to make it appear that '28' was altered into '8' and '3-8-0' into '1-0-0'. Accepting the Assistant Station Master's, evidence before the Sessions Judge that iff the counterfoil 76 he first entered Anantapur by mistake and that he accordingly corrected it into Grooty as true and accurate and on the hypothesis that the original figures in the counterfoil 76 were '8' (words) and '1-0-0' which are now tampered with so as to make it appear that the original figures were '28' (words) and '3-8-0' altered into '8' and '1-0-0,' the truth seems to be that the two messages, viz., one to Kesava Pillai at Gooty and the other to Basireddi at Anantapur, in neither of which is any mention made of the murderers, were delivered to the Assistant Station Master by Balaranga Reddi, shortly after 1 o'clock and transmitted by the Assistant Station Master by wire to the addressees and that at 3 P.M. the message to the District Magistrate Was delivered to lyyasami Aiyar, the Principal Station Master, who signed the receipt for that, and was transmitted by him by wire to the District Magistrate. The evidence of Yenkata Ranga Reddi and K. Iyyasami Iyer who were examined in the court is in more respects than one very suspicious, and I am not prepared to accept their evidence as satisfactory. Turning now to the evidence of Chenna Reddi as to the telegrams, he says that after seeing Ranga Reddi's corpse at the scene of murder he told his people to write to the Police and telegraph to the District Magistrate, Kesava Pillai and Basi Reddi, and that his son Balaranga Reddi went to the Penner Station to send the telegrams. If this were so, it is absolutely impossible as I pointed out during the course of the argument that the telegrams could have been despatched from Chimalavagupalli before 2-30 P.M. No doubt Chenna Reddi says that the three telegrams were sent together, but it is certain that the telegrams to Kesava Pillai and Basi Reddi were sent from Chimalavagupalli between 12-30 and 1 o'clock, and they could not therefore have been sent after Chenna Reddi's return from the scene of murder. If the message to the District Magistrate were sent after his return from the scene of murder as stated by him, it would have left Chimalavagupalli at about 2-30 and reached the Railway Telegraph Office at about 3 P.M. The Public Prosecutor here again says that Chenna Reddi is mistaken in his evidence as to when he sent the telegrams. The communication to the Police herein referred to is Exhibit 2 addressed to the Station House Officer at Yadiki in which the names of the three murderers are mentioned as in the telegram to the District Magistrate. I have little doubt that the message to the District Magistrate and the letter to the Station House Officer of Yadiki were prepared and sent simultaneously, and there is the same doubt hanging over Exhibit 2. It is certain that Exhibit 2 reached the hands of the Station House Officer of Yadiki and was opened by him only at 5 P.M., but evidence is given to the effect that the message was brought to the Station House at about 2 P.M. Or so, that there was only one Constable in charge of the station until 5 p.M. when the Station House Officer returned and that he being an illiterate person did not open Exhibit 2 and that the message was therefore detained until the arrival of the Station House Officer until 5 p.M. If Exhibit 2 was sent to Yadiki by a messenger at about 2-30 when the telegram was sent to the Railway Station, the messenger would have reached the Police Station House at about 3-30 or 4 and might have been waiting there till 5 P.M. As regards the telegram to the District Magistrate and the communication to the Station House Officer of Yadiki, I have not been able, principally because the Assistant Station Master was not cross-examined as he ought to have been in Session Case No. 53 and his evidence sifted, to come to any decided and positive conclusion that they left Chimalavagupalli at about 1 o'clock or that they left at about 2-30 P.M. But I am certainly not prepared to accept the evidence about the telegram or Exhibit 2, and the onus certainly being upon the prosecution that the message was not delivered at 3 P.M. as shown by the telegram itself and that Exhibit 2 which reached the hands of the Station House Officer and was opened by him only at 5 P.M. was really written and despatched from Chimalavagupalli at 1 P.M. as deposed to by Chenna Reddi and its scribe (P.W. 73), and that its bearer Sunkadu (prosecution witness 74) went to the Statipn House that day and was waiting there till 5P.M. The prosecution has not established that the message to the District Magistrate was in fact delivered at 1-30 or that Exhibit 2 was sent from Chimalavagupalli at 1 p.M. In the view I take of the case it would not affect my conclusion even if the message to the District Magistrate had realty been sent from Chimalavagupalli at 1 P.M. ; f6r as I have already stated Chenna Reddi from ,the very moment when he heard of the murder of his sonRanga Reddi must have believed that the ab6ve three persons were at the bottom of the murder and that their men must have perpetrated the murder. If, as I have no reason to doubt, the telegram was prepared and sent only after 2-30 from Chimalavagupalli and if it was delivered at the Railway Telegraph Office at 3P.M., the irresistible inference to be drawn from it is, that though Chenna Reddi believed from the very beginning that the a,bove three persons were at the bottom of the murder, yet he was not preparcd to incur the legal responsibility of giving out their names and accusing them as the murderers until he heard of the so-called capture of the 3rd accused at Yadiki by Linga Reddi and his communication to Linga Reddi by way of confession of the names of the above three persons and others as murderers and until he also made himself tolerably sure that the so-called eye-witnesses would implicate the said three persons. He admits in his evidence that he saw Linga Reddi at 3P.M, at Chimalavagupalli which was after the capture of the 3rd accused and in fact after the 3rd accused was brought to the scene of the crime at about 2-30 P.M. as deposed to by the Vemulapad Village Munsif (prosecution witness 49). Lingayya also says that his son was sent by Chenna Reddi to inform him of the murder and to fetch him. Lingayya after getting hold of the third accused and prevailing upon him to implicate the above three persons with others while exculpating himself arranged to take the 3rd accused to the scene of murder and must have seen Chenna Reddi at Chimalavagupalli not at 3 P.M. as Chenna Reddi says but between 2 and 2-30 P.M. and communicated to him his exploits with the 3rd accused. Thereupon Chenna Reddi is emboldened to send the message to the District Magistrate if in reality he was the auther of it and Exhibit 2 to the Station House Officer at Yadiki, and Chenna Reddi also goes to the scene of murder where he meets the 3rd accused in the presence of the Vemulapad Village Munsif, the Revenue Inspector and others. The confession of the third accused is first repeated to the Vemulapad Village Munsif who gives the substance of it in Exhibit Z, which is addressed to the Sub-Magistrate of Yadiki and which was written after 3-30 P.M. The Sub-Magistrate of Yadiki (P.W. 5) arrives at the scene of murder at 5 P.M. and begins to record the so-called confession of the 3rd accused. The Deputy Magistrate arrives at 6 P.M., and at his suggestion the Sub-Magistrate discontinues the recording of the confession and holds an inquest Exhibit L on a blank paper not having a printed form. After finishing the inquest he resumes the recording of the confession which was finished only at 9 P.M. the Yadiki Station House Officer having in the meanwhile come at 7-20 P.M. At what portion of the recording of the confession Exhibit K the break occurred, does not appear. Exhibit L is a short document, and it may therefore be presumed that the process of recording the confession K extended over three hours. The more complete inquest Exhibit D was commenced at 9 P.M., and after the 3rd accused implicated at the scene of murder in the presence of a crowd the three accused above referred to and others, it is no wonder that the so-called eye-witnesses were emboldened to depose as recorded in Exhibit D that they saw the above three accused and others committing the murder. It is significant that Chenna Reddi at the conclusion of his deposition in Exhibit D said as follows: 'I at once saw the spot mentioned. There my son was lying wounded and dead. I wrote and sent a report to the Police Inspector', evidently referring to Exhibit 2. This, in my opinion, almost conclusively shows that he was not the auther of the telegram to the District Magistrate and that at 9 P.M. on the day of the murder he was not aware of the despatch of the telegram to the District Magistrate. In his deposition next morning Exhibit E, he of course alludes to the telegram. When at the inquest he made pointed reference to his having sent Exhibit 2, it is incredible that he would not have mentioned the more important communication to the District Magistrate if he had sent it. The Sessions Judge who tried case No. 1 referring to Exhibit 2 says that it is impossible to say when it was despatched, and it may have been despatched after the 3rd accused had been questioned and confessed, and as Chenna Reddi says that the telegram to the District Magistrate and Exhibit 2 were sent at the same time it is extremely probable that the telegram also was sent, after the confession of the 3rd accused made to Lingayya at Yadiki before 2 P.M., was communicated to Chimalavagupalli. Another important document, Exhibit Y, being a communication from the Vemulapad Village Munsif (P.W. 49), throws considerable light on this point. He says that he heard of the murder at 1 P.M. at Timmapuram from general rumour and came to the Scene of murder between 1-30 and 2 P.M. and from there sent reports to the Yadiki Sub-Magistrate and the Station House Officer, Exhibits Y and Y (1). It is a bare report of the murder, and there is no mention or allusion to the supposed murderers. The Village Munsif explains that he found only three weavers whom he could not identify, 'weeping at the corpse' and that he asked them why they were there. They said that they had come shortly before and knew nothing about the murder. Of course he is a relation of Chenna Reddi, and he gives this extraordinary story to account for the non-mention of the murderers in Y andY1, It appears from Papodu's evidence that soon after the news reached Chimalavagupalli he among others went to the scene of murder and at the time when the Vemulapad Munsif came there, there must have been several others present there who had heard of the news at Chimalavagupalli and of the names of the murderers if as the prosecution tries to establishNarayana Reddi and the bandyman had given out the names at the village as soon as they went there. His story that he saw only some three weavers weeping at the corpse, who knew nothing about the rumour or anything, is incredible and a pure invention to get over the effect of Exhibits Y andY1.
56. Turning now to the theory of Subbi Reddi having conspired with accused 1, 2 and 9 in Sessions Case 53, which conspiracy the Public Prosecutor uses as disclosing an intention on the part of Subbi Reddi to murder Ranga Reddi, there are three distinct sets of evidence. One is by Hussen Khan, the co accused in the false coining case. Of course his evidence on the face of it is manifestly a concoction, and as it was rejected in both the trials by the two Sessions Judges, it is unnecessary to refer to it. The other is the story of the plot and the trap spoken to by Nadipi Appayya who was in the employ of Chenna Reddi after the false coining case to sleep at the house as a guard. I have already commented upon his evidence in connection with the 9th accused in Sessions Case 53, and it is unnecessary to repeat my reasons for totally disbelieving him. The remaining one is an attempt on the part of Subbi Reddi to murder Chenna Reddi in April 1900, and the witnesses who speak to this are Rachamalla Rangayya (P.W. 36 in S.C. 1 of 1901), Govindappa 35 S.C. 1 and Pilla Subbayya 34 S.C. 1. Their evidence is sought to be corroborated by Exhibits C and C1 which purport to be letters addressed to Chenna Reddi apparently on the 15th of April by Pilla Subbayya, and in C1 it is added by way of postscript that the facts mentioned therein were informed by Govindappa. Though there is some obscurity about the dates of these letters, yet I have no reason to doubt their genuineness. Pilla Subbayya says that he wrote these two letters at the dictation of Govindappa (P. W. 35), and Govindappa corroborates this. Neither of them said who the Govindappa referred to in Exhibit C1 was. Govindappa says that in Simhadripalli while he was sitting in the shop of Basivi people in the market, Rachamalla Rangayya came there, took him inside the shop and said that Subbi Reddi had told him that he had settled with Balaji Govindugadu and others of Ankapalli to murder either Chenna Reddi or Ranga Reddi and that they asked him to join in the murder and promised to pay him Rs. 100 but that he refused to join in the conspiracy. Govindappa says that he asked Rangayya to make further inquiries about the matter in the market and communicate to him the result. On the same evening when Govindappa was seated near a water-shed, Rangayya comes to him and tells him that he had received information that Agraharam Bala Venkata Reddi and Subbi Reddi had gone to Tirunampalli. Govindappa says that, as he was a friend of Chenna Reddi, he conveyed the news to him by the said two letters, but he admits that Rangayya did not know that he was a friend of Chenna Reddi and neither of the two letters makes any mention of or allusion to Rangayya as the source of the information. Rachamalla Rangayya gives a very extraordinary story. He says he is a friend of Subbi Reddi and has known him for six or ten years. He says that Subbi Reddi one day came to his house, took him inside and said 'Rangayya, I have to tell you a thing, if you promise not to let any one know'. Rangayya promised not to let any one know. Subbi Reddi then says 'Bala Govindappa and some people from the other side of the ghaut will come, and if you join them in killing Chenna Keddi or his son Ranga Reddi, I will give you Rs. 100'. Rangayyasys 'Don't call me. It is not aproper business for me I won't come.' Five or ,six days afterwards, Rangayya communicates this to Govindappa in the Simhadripalli market, and Govindappa asks him to get further information. Rangayya gets further information that very day from Gore Sahib and communicates the same that evening to Govindappa, viz., that Venkata Reddi and Subbi Reddi had gone to Tirunampalli. Rangayya says that Govindappa is a friend of his for a long time. Rangayya says that he has no reputation of being one of the bad characters of the village and that Subbi Reddi spoke to him only once about joining in the conspiracy. He does not know either Chenna Reddi or Ranga Reddi. He says he happened to meet Gore Sahib in the market and asked him if Subbi Reddi was in his village or not, having immediately before put the same question to two or three others who were unable to answer it. Gore Sahib tells him that he came to know that Subbi Reddi had gone to Tirunampalli, and he says that he knew it but he does not tell him on what business Subbi Reddi had gone, and this is the first time that he ever spoke to him though he had seen him before. It may be that Pilla Subbayya having heard some rumour that Subbi Reddi collected some men, one or two of whom are named in Exhibits C and C1, wrote these letters by way of warning to Chenna Reddi, and it may also be that Govindappa, the person referred to in C1, did hoar of the matter. Of course, if the matter simply stood upon the evidence of Pilla Subbayya and Govindappa, it would simply be hearsay evidence and of no use. The whole case therefore rests upon Rachamalla Rangayya's evidence which alone, if believed, would establish that Subbi Reddi was designing to murder Chenna Reddi or Ranga Reddi. There is nothing in C or C1 which will lend any corroboration to the story now told that Rachamalla Rangayya was the informant. Of course, if there was any allusion to Rachamalla Rangayya in either of these letters, that would be a valuable corroboration of Govindappa's evidence that Rangayya was the informant. That Rangayya was the informant therefore rests purely upon the oral testimony now given by Rarigayya and Govindappa. I may mention that Gore Sahib as D.W. 2 denies having given any information to Rangayya. The fact that Rangayya now mentions the names of some persons as hired by Subbi Reddi whose names are also mentioned in C and 01, is no corroboration of Rangayya's evidence by these letters because the same names are mentioned in these letters Rangayya in his evidence now taking advantage of that circumstance mentions that these names were mentioned to him by Subbi Reddi. In judging of the value of Rangayya's evidence, it would be fallacious to impart any weight to it from C and C1. His story is on the face of it incredible. Subbi Reddi would not have been so foolish as to go and ask him to join in the conspiracy, and it is still more incredible that Rangayya communicated this to Govindappa whom he did not even know to be a friend of Chenna Reddi. The truth probably is that 0 and 01 having been really sent by Pilla Subbayya based upon some gossip or hearsay information, value is sought to be imparted to these letters by securing the evidence of Rachamalla Rangayya as the source of information and as that information will not be legally of any value unless that informant was in direct communication with Subbi Reddi, Rachamalla Rangayya is secured to complete the chain of evidence. The evidence in regard to the various alleged acts of conspiracy played a prominent part in the two cases because the accused were also independently charged with the offence of conspiracy to murder Ranga Reddi, and I have analysed such evidence more minutely and commented thereon more fully than it deserves, for am convinced that in crediting the testimony of the so-called eye-witnesses to the murder and convicting the accused in both the cases of murder and the 9th accused in Sessions Case 53 of abetment of murder by aiding, both the Sessions Judges and the assessors in the two cases were materially influenced, if not prejudiced, against the accused by the evidence relating to these acts of conspiracy. In addition thereto in the trial of Sessions Oase No. 53, the Sessions Judge and the 2nd assessor whose opinion alone I have taken into consideration were materially influenced if not prejudiced against all the accused by the so-called confessions of the 3rd and 6th accused. The references made above to witnesses and documents, except when specially made with reference to the trial in Subbi Reddi's case, are to be understood as made with reference to their number and mark in the trial of Sessions Oase 53 of 1900 though such witnesses and documents were also examined and exhibited in Sessions Case 1 of 1901. The extraordinary story of the 6th accused after his confession picking up Chenna Reddi's revolver in the presence of. the Police near a pond, which revolver is alleged to have been stolen and carried away by the 1st accused from the scene of murder, the story of the 6th accused offering to sell the same three or four days before its discovery to one of the witnesses for the prosecution who was in no need of a reyolver, the story of the 5th accused having first promised to the Police to discover the same revolver and his denial of any such promise when produced before the Sub-Magistrate, and the extraordinary evidence given by Haji Bi, have no direct bearing upon Subbi Reddi's case and have not in fact been narrated in his case. They played an important part in Sessions Case No. 53, and I totally disbelieve the same and regard them as damaging in smal1 degree the prosecution in Sessions Case No. 53 of 1900.
57. The conviction of Subbi Reddi on the count of murder also and the sentence passed on him should, in my opinion, be set aside.
Bhashyam Aiyangar, J.
58. (In Referred Trial No. 61 of 1900 and Criminal Appeals Nos. 874 to 877 of 1900).--After a very careful and anxious consideration of the evidence on record and the opinion of the Sessions Judge and of the second assessor whose opinion alone I took into consideration, I am satisfied, for the reasons given by my learned colleagues, and for the additional reasons given by me in my judgment in Criminal Appeal No. 878 of 1900 and Criminal Appeal 143 of 1901 in Subbi Reddi's case, that the evidence of the so-called eye-witnesses is altogether unreliable and that the conviction of the appellants in the above appeals and the sentences passed on them should be set aside and that they should be acquitted.
59. N.B.--After delivery of judgment in this case, his Lordship, Mr. Justice Bhashyam, Aiyangar, addressed the Public Prosecutor and other members of the Bar appearing as Counsel in this case, as follows:
Now that judgment has been delivered in this case, I think it right that I should mention in public Court that, during the hearing of this appeal which extended over the greater portion of three weeks, I received by post three private communications addressed to mo in connection with this case.' They are all in the English language, two bearing English signatures and one a Teiugu signature Whether these letters are genuine in the sense that the signatures are these of the authors or writers, or whether they are only pseudonymous, I urn not now in a position to say. The first letter which I received and opened on the 2nd of April, but which I read only this morning, is a long one extending over four full pages of foolscap. It is a comment upon the evidence, or rather imaginary evidence, in the case and advances a number of arguments in favour of the conclusion which the writer wants to force upon me. The writers of the other two letters, each from his own stand-point, convey to me advice as to how I should deal with the case and in whose favour I should decide it both in the interests of justice and in my own interests. The authors of these three letters, whoever they may be have committed a grave contempt of Court in sending by public post private communications to a Judge of this Court with the sole and deliberate object and set purpose of influencing his decision in a judicial matter of the highest importance to the public. These persons and others similarly disposed to tamper with justice ought to know that it is a high contempt of Court to communicate with or seek in any way to influence a Judge upon the subject of any judicial matter which has to determine, and that a chartered High Court in India is a Superior Court of Record which can summarily deal with contempt's of Court though the same be committed otherwise than in facie curix, which has the power to punish the offender by commitment in a summary way, a power which no doubt will be sparingly used but will certainly be used when there is the 'pressure of public necessity', and even then not to vindicate the dignity of the Court but in the interests of justice and in view to 'repress tampering with justice.
I now hand these three letters with their envelopes to the Registrar of the Court.