1. The first and second accused were charged before the Sessions Judge of Kurnool under two sections of the Indian Penal Code, namely, (1) under Section 364, abduction with intent to murder, and (2) under Section 302, murder, the person concerned in each case being one Veeranna who, it will later be seen, was unquestionably murdered on 13th October, 1935. The learned Sessions Judge has acquitted both the accused of murder and has convicted them both under Section 364, Indian Penal Code, has sentenced the first accused to transportation for life, and the second accused to rigorous imprisonment for 3 years. The first accused has appealed against his conviction (Criminal Appeal No. 660 of 1936) and the Crown has appealed against the acquittal of the accused for murder (Criminal Appeal No. 615 of 1936).
2. The first accused lives at Kurnool and the deceased woman Veeranna, was concerned with him in his business which unquestionably was that of an unauthorised practitioner. He seems to have written legal documents. He occupied part of a house in which P.Ws. 2 and 3 were also tenants. Opposite that house lived P.W. 8 and a little to the north is the house of P.W. 9. P.W. 20's house was somewhat to the south. An examination of the plan would show the situation of the rooms in the house. The second accused used to visit the first accused, and the deceased also used to visit the first accused. According to P.Ws. 2 and 3 shortly before the death of the deceased, the first accused introduced the deceased to the second accused and the first accused told the deceased that the second accused was possessed of evil spirits and that he should exorcise it. Apparently the deceased was supposed to possess the gift of exorcising evil spirits and she agreed to do so. The deceased went away and came back the next day and then certain mantrams were gone through with a view to exorcising the spirit. On 11th October, 1935, P.Ws. 2 and 3 who were student and teacher respectively were working till 10 o'clock in the night and went to bed about then. Whilst they were lying down but not asleep the first accused came out of his own room and said to the second accused 'See if they (meaning the two witnesses) are asleep or not'. A. 1 told A. 2 that they were asleep and so they could talk. Then according to this witness (P.W. 2) the following conversation took place and it is of the greatest importance in this case and we will record in extenso. 'A. 1 told A. 2 to tell the deceased that she would advance Rs. 300 as a loan and that then she (the deceased) would go with them (accused 1 and 2) to Sankesula and they could murder her in the date tope near the jungle stream beyond the 11th mile on the way'. It should be mentioned that A. 2 lived at Sankesula which is some 15 miles from Kurnool. Then A. 2 said 'suppose she cries out--it would be hard for us then'. Then A. 1 told A. 2 'she would not cry. On the 5th A. 1 had made the necessary arrangement by going and returning'. Then A. 2 said to A. 1 'what do we gain by murdering her'. Then A. 1 said 'we can take the gold jewels on her person, namely, bangles, sangalis, chain and ring. We can take her thumb impression and get her lands and houses and her iron safe which was in the Panchayat Court'. Then according to P.W. 2, A. 2 said 'it is alright'. Next morning, that is to say, on the 12th October 1935, P.W. 2 states that he challenged A. 1 in the presence of P.W. 3 about the conversation, whereupon A. 1 said if he divulged it to anybody he would kill them both. P.W. 2 replied 'We are not concerned in divulging it'. That evening A. 1 and A. 2 and the deceased were in A. l's room. Everybody went to bed as usual, but at 2 A.M., P.W. 2 says he was aroused by Ahmed Khan, the Publicjutkawala, P.W. 4, treading on his hand. Shortly, his account of what happened amounts to this, that A. 1 and A. 2 went away with the deceased in P.W. 4's jutka, and according to P.W. 3, A. 1 had what he calls 'a stick' with him which we have had produced before us and is marked M. 0.2. It is not a stick; it is a pounder, obviously a very dangerous weapon. That is the story so far, up to that time, of P.W. 2. P.W. 3 tells in substance the same story. He does not mention that A. 2 after protesting said 'All right'. P.W. 3 corroborates that A. 1 told him that if he divulged it to any one, he would kill them. P. Ws. 2 and 3 state that next morning they woke up early and went to the Circle Inspector's house and it is a fact that they recorded Ex. B, the First Information Report. This is a document of the utmost importance. It tells in substance the story which we have set out, but it also says that two other men, Madadu and Mallagadu, were to be parties to this murder and they are described according to Ex. B. The accused had been in consultation with them for some time before. It is impdrtant to note that in Ex. B, the statement appears 'Last night at about 2 o'clock, Veeramma started out in the jutka of Ahmed Khan (P.W. 4) as Hanumamma promised to give her, at Sankesula Rs. 300, for liquidating her debts'. The learned Counsel for the appellant have quite rightly stressed and stressed very strongly--the fact that the detailed conversation which we have set out and which is contained in the evidence at the Sessions as to what A. 2 said and as to what A. 1 said, was not so stated in Ex. B, and the learned Counsel for the 2nd accused attaches great importance to that, because according to his argument, if that evidence is eliminated (that is the evidence given at the Sessions) there is very little evidence against his client on which she should be even convicted under Section 364, Indian Penal Code. But it must be observed, as we have emphasised before, that in both the statements, it is stated that it was arranged that the 2nd accused should promise to give Rs. 300 to the deceased and that the 2nd accused should go to Sankesula. We may say at once that in spite of the criticisms launched at the evidence of P.W.'s 2 and 3, we are perfectly satisfied that that evidence is acceptable. It is a very remarkable case of a statement which if given after the discovery of a murder, might have been strongly criticised. But it was given before, and no cross-examination was ever directed to the police officers concerned to suggest that the time of recording EX. B has been past-dated for the purpose of the prosecution case. Ex. B was given at 6 A.M.A. 1 was arrested at about half past seven. The body was not found till 3 A.M. on the 14th that is to say} on is next year and as WJIJ appear, was discovered on information supplied by A. 1 himself. So, with regard to the fact of the murder, it was anticipated in Ex. B, and as will be seen from the rest of the evidence, many of the facts relied on in Ex. B are corroborated by evidence which would not have been at the time and which was only discovered later by investigations by the police.
3. [His Lordship discussed the evidence in the case and concluded:]
4. The result will now be that the appeal of A. 1 will be dismissed. The appeal of the Crown with regard to A. 2 will be dismissed. The appeal of the Crown with regard to A. 1 will be allowed. With regard to the sentence we have naturally given this matter the most anxious consideration, because this is after all an appeal against an acquittal, and although there is no practice laid down, we should often be reluctant in an appeal against an acquittal to pass a sentence of death. In this case, however, we consider we should be failing in our duty if we did anything else. This was a particularly cruel murder, carefully planned and deliberately carried out, and we consider that the proper sentence for us to pass is that the first accused should be hanged by the neck till he is dead. With regard to the question of sentence on the second accused we consider that notice should go to the second accused to show cause why her sentence should not be enhanced.
5. Before leaving this case, we desire to point out that the method of recording statements given under Section 27 followed in this case is most unfortunate and this Court in Criminal Appeal No. 530 of 1936 has pointed out that statements made by an accused person which contain information provable in evidence under Section 27 of the Indian Evidence Act should be clearly and carefully recorded by the Police Officer and they should be recorded in the first person. They should not be paraphrased. Obviously if what a man says is to be used in evidence his exact words should be used and not what a policeman or anyone else says he said. That is sufficient comment with regard to this aspect of it. When the police have recorded the statement, it will in each case be for the trial Court to decide how much of the statement is admissible under Section 27, that is to say, how much of such information as relates distinctly to the fact discovered may be proved. And in considering that, the Court should bear in mind the fact which seems to have entirely escaped the notice of many Sessions Judges in this Presidency recently, that is, that so much of such information whether it amounts to a confession or not may be proved provided that it relates distinctly to the fact thereby discovered. A decision of this Court in Periakaruppan, In re1, deals with this topic. It is so pointed out there that under Section 27, the whole statement which leads to the discovery may be given in evidence and it was further held that on no account should a statement be altered. See also SogaimuthuPadayachi v. Emperor I.L.R. (1925) Mad. 274. We agree with the principles laid down in that case although we are not wholly able to follow how they were applied to the actual facts before the Court. The statement in that case was sought to be admitted in its entirety. Of course, it will be for the Court in each case to say how much of the statement leads to the disctovery of the facts in each case. If it is necessary in order to make sense of the statement of the accused to set out any question put to him that should obviously be done. The present practice which frequently occurs of police officers going into the box and saying some such thing as this, 'the accused said he would show the aruval' or 'the accused said he would show the 'body' or 'the jewels' is wrong'. Obviously these are not the words of the accused but a mangled and incomplete paraphrase. We hope that the Courts will take notice of these observations.