1. The appellant has been convicted by the learned Sessions Judge of Cuddapah of three offences of murder and has been sentenced to death.
2. This is a somewhat unusual case; the appellant single-handed is supposed to have killed a Forest Guard and, a Forest Watcher and another man. The prosecution case was, that the appellant and a little boy examined as P.W. 2 trespassed into the Forest Reserve near Thimmayagaripalli before daylight on the 16th March, 1939, and that they cut wood in the forest and were making their way to the village when they were caught by the Forest 'Guard Kesavalu, Forest Watcher Somayya and another man Penchulagadu a relation of Kesavalu. These three are supposed to have stopped the appellant and P.W. 2 and the appellant is supposed to have killed them one after the other: Kesavalu first, Penchulagadu second and Somayya third. Kesavalu and Penchulagadu are supposed to have been unarmed but Somayya was armed with a bill-hook which by the looks of it is quite as efficient a weapon as M.O. 5 which is said to be.the appellant's weapon. The appellant escaped with nothing worse than a slight cut on his left forearm.
3. The prosecution story was spoken to in the Court of the committing magistrate by the little boy P.W. 2 who is a child of 13 and he described how on the morning of the 16th March, the appellant took him to cut fuel and how on the way back they were intercepted and the appellant cut all the three men. His deposition before the sub-Magistrate was filed in the Sessions Court as Ex. G. The learned Sessions Judge has not' expressly stated so, but it is clear that he meant to do this under the power conferred upon him by Section 288, Code of Criminal Procedure because the boy in the Sessions Court stated that he knew nothing whatever about the matter and obstinately refused to answer any questions except I do not know'. P.W. 2 is supposed to have been the only eye-witness and the only other item of evidence of any importance against the appellant is that on the morning of the 19th of March, he made a statement to the Superintendent of Police which led to the discovery of a billhook (M.O. 5) which the appellant said was the weapon used by him to kill all the three deceased. The appellant thereupon is said to have taken the Police and certain respectable persons to a place in the forest 25 or 30 yards from the place where the v corpses were found and there to have produced from under a bush this aruval (M.O. 5). Supposing for the moment that the evidence is admissible under Section 27 of the Evidence Act, there is no corroboration of the truth of the statements made by the appellant because the aruval when sent to the Chemical Examiner was not found to be stained with blood. Mf. Jayarama Aiyar who has appeared for the appellant in this Court has contended that evidence regarding the statements made by the appellant before the production of (M.O. 5) ought not to have been admitted. We think that this contention is well-founded. The appellant is said to have made a statement to the Superintendent of Police P.W. 8 on the morning of the l9th march, but the Superintendent of Police was obliged to admit to four hours on the night before, that is, from 7-15 to 11-15 and for two hours on the morning of the 19th he was questioning the appellant. This was a flagrant violation of R. 303 in Vol. I of the Madras Police Executive Orders. It is there laid down that:
The practice of resorting to persuasion, trickery or oppression to induce any accused person to confess is prohibited. It is right that the Police, when they are endeavouring to discover the author of a Crime, should make inquiries of, or put questions to, any person from whom they think they can obtain useful information. But when once an accused person has been arrested, while they may, and indeed should, listen to any statement which he. may voluntarily make, they are strictly forbidden to interrogate him or press him to make a statement.
4. It would be absurd to suppose that the statement made by the appellant to the Superintendent of Police after six hours' questioning was a voluntary statement. The learned Public Prosecutor has raised the question whether even if the statements were not voluntary, the evidence regarding the production of the aruval would nevertheless be inadmissible. We think that there is no difficulty about admitting the evidence in so far as the production of the aruval alone is concerned, but we agree with Mr. Jayarama Aiyar that evidence regarding the statement made by the appellant in connection with it could not be admitted; it would be ruled out by Section 24 of the Evidence Act.
5. The case is wholly unsatisfactory. It is not at all clear how the Superintendent of Police came into contact with P. W. 2 and consequently the appellant. The evidence of the Tolice officers on this point is discrepant. There were engaged in the case the sub-Inspector of Police, the Circle Inspector P.W 18 and the District Superintendent of Police P.W. 8, not to mention the Head Constable P.W. 16 who held an ' inquest for four hours on the 17th March, at which he examined only one witness P. W. 7 who could give nothing but hearsay evidence about the discovery of the corpses. Now the boy P.W. 2 is supposed to have told what, he had seer to P.W. 10 on the morning of the 17th March, but P.W. 10 did not disclose anything of what he had learnt at the inquest held, on that day. The sub-Inspector says that P.W. 10 was not examined by him or by the Circle Inspector before the District;, Superintendent of Police came, which was on the evening of the 18th March. The Circle Inspector also says that he did not examine P.W. 10 but he says that the Superintendent of Police examined him in his presence on the 18th March, before P.W. 2 was examined. P.W. 10 however says that he was examined by both the Inspector and the sub-Inspector on the morning of the day on which the District Superintendent arrived, that is, the 18th. The District Superintendent does not say anything about having examined P.W. 10 and it does not appear from his evidence how he came into contact with P.W. 2.
6. In so far as the evidence of P.W. 2 is concerned, it is clear that his deposition in the Magistrate's Court could be used as substantive evidence under Section 288, Criminal Procedure Code, if the learned Sessions Judge had recorded his Opinion that the witness was speaking the truth before the Committing Magistrate and had resorted to falsehobd before him. But it is clear that the evidence of such a witness as this is not to be safely relied upon in the absence of corroboration. Now, so far as the statement made by the appellant to the Superintendent of Police is concerned, *it is clear that it is not consistent with the evidence given by the boy P.W. 2. According to P.W. 2 when he and the appellant were coming away from the forest, they were first stopped by Penchulagadu whom the witness calls Mokatigadu. He says that it was Penchulagadu who first caught hold of the appellant. But the appellant when he was describing the occurrence to the Superintendent of Police said that it was Kesavalu who caught hold of the bundle' of fuel which he was carrying on his head. It is singular also that the appellant spoke to the Superintendent of Police about a bundle of fuel whereas P.W. 2 said that he and the appellant had cut logs of wood. The fuel which the appellant and P.W. 2 are supposed to have cut in the forest and which must have; been dropped at the place where the murders took place was not apparently found by the police and has not been exhibited in the case. Nor is there any evidence regarding the trees from which the fuel was supposed to have been cut.
7. The evidence of the doctor who made the post mortem examination of the bodies is guite inconsistent with the story told by P.W. 2 in the lrfwer Court. The doctor found nothing but clean cut wounds on all the bodies; P.W. 2 says that the appellant used the back of the aruval against all the three men.
8. The back of the aruval is nearly a quarter of an inch thick and could not produce clean cut wounds.
9. We find the evidence in this case wholly insufficient to sustain the conviction of the appellant. We therefore set aside the conviction and the sentence of death and direct that the appellant be set at liberty forthwith.