Relph Benson, J.
1. In this case, M. Kurmiah appeals against his conviction of the murder of one Mahalakshmi.
2. On the 3rd May last, the body of an adult female was found in a very decomposed state in a pond, and it was identified as that of Mahalakshmi by some of her relations. The proof of identification is not altogether satisfactory, and on that ground, the assessors acquitted the accused. The Sessions Judge, however, held that the identification was sufficient. I agree with the Medical Officer that the body itself could hardly have b?en identified owing to its decomposition, but I think that the body has been proved beyond all reasonable doubt to be that of Mahalakshmi by the evidence which shows that the cloth (Material Object No. 4) that was on it, and the cloth (Material Object No. 2) and the string of beads, (Material Object No. 1) found on the bank close by the pond, belonged to her, and by the fact that certain jewels which she was wearing before the murder were traced shortly after the murder to the possession of the accused, who had had improper relations with her and who was with her on the evening before she disappeared, and who gives no satisfactory account of his possession of the jewels. Mahalakshmi, though only 18 or 20 years of age, had been married no less than 4 times and had abandoned all her husbands after a more or less short experience, She had neither parents nor brothers nor sisters, but an uncle looked after her in a general way. The accused was her second husband, but she abandoned him after eight months, and married Korikana Sanyasi. Him she also abandoned, and about the middle of April last, she was summarily married by the village Magistrate to Appiah, but she left him after four days, and the evidence is that she was in the habit of practically living at the threshing floor of her former husband, (the accused), though the latter had in the meantime married another woman, Ademma. The evidence is that Ademma lived in the accused's house, and neither quarrelled with him, nor with Mahalakshmi on account of the latter sleeping at the accused's threshing floor, whither the accused also used to go to sleep.
3. The pond was some 6 yards long by 5 yards broad, and the water was only about a yard in depth. The feet and legs of the body up to the knees were sunk in the sand or mud of the pond, and there was a large stone tied in the cloth that was round the waist of the corpse, and another large stone was found placed upon the knees of the body. There were no jewels on the corpse when found. The body was found on the 3rd May and suspicion fell on the accused, who was arrested the same day after the inquest. In consequence of information given by him to the Head Constable, the latter at once went to the wife of the accused, Ademma, who produced the jewels, Material Objects Nos. 7(1) and (2). These jewels are gold nose rings (called kanmulu), with a cut across the centre, and they are fully identified (by unimpeachable evidence referred to by the Sessions Judge in paragraphs Nos. 8 and 18 of his judgment) as jewels which had been made for, and given to, Mahalakshmi on her marriage to Appiah some ten days before the date when the murder must have taken place, which is otherwise fixed as the night of the 27th April. The accused, in his statement to the Committing Magistrate, which he adhered to at the trial, stated that these kammulu which were before the Court were given by him to Ademma to hide for fear of robbers, but he denied that they had belonged to Mahalakshmi. Ademma, however, states that these kammulu were given to her by the accused three days before she gave them up to the Police, and, as already stated, there is unimpeachable evidence that these jewels were made for Mahalakshmi when she was married to Appiah some ten days before her murder.
4. The 15th witness for the prosecution, who lives within 70 yards of the accused's shed, proves that Mahalakshmi was wearing these jewels, Materail Objects Nos. 7 (1) and (2), on the Saturday evening six days before the body was discovered. That would fix the date when she was last seen alive as Saturday, the 27th April. It is true that he noticed the jewels 'at night meal time', but he was within four yards of her when he saw them, and though he might find it difficult to identify one set of kammulu from another similar set under such circumstances, yet he could certainly notice the fact that she was wearing gold kammulu and there is no suggestion that the woman had more than the three kammulu which he says he saw on her. The 17th witness, another neighbour, also says that Mahalakshmi wore kammulu like Material Objects Nos. 7 (1) and (2) on that Saturday night and that she and the accused were then together near the shed and were going towards Kottavalsa, i.e., in the direction of the pond where the corpse was afterwards found.
5. On these facts, it is difficult to arrive at any other conclusion than that the accused murdered her on that night, stole her jewels and gave them to his wife, Ademma, a day or two afterwards.
6. It is true that the motive seems to be inadequate. He was apparently friendly with the woman, and she paid a small fine of Rs. 3 for him on that very day. Two of the prosecution witnesses say that he was annoyed with her for frequenting his shed after he had married Ademma, but the latter apparently did not care about it, or quarrel with him or her, on this account. The evidence, too, is that the accused was cultivating land assessed at Rs. 40 or 50, so he was not driven to crime by want. It is, therefore, not clear that the accused had any sufficient motive to commit the offence, but the motive is often obscure when a man murders a woman with whom he is on terms of illicit intimacy. The absence of motive at first led me to think that it might be a case of suicide, and the finding of her bead necklace, with string unbroken, on the bank of the pond, also suggested suicide. But further consideration leads me to the conclusion that the evidence is inconsistent with the idea of a suicide.
7. The woman might, no doubt, have tied a stone in her cloth and walked into the pond holding another stone in her hand and resting it on her knees, and then, if possessed of great firmness of purpose, she might have lain back and drowned herself in the water though only a yard deep. But it is impossible to suppose that if she had done this, the large stone would have remained on her knees. However determined to die, she must have involuntarily moved, when being suffocated, in such a way as to have caused the stone to fall off her knees, but the evidence is that it was found on her knees, not tied but resting on her knees. Moreover, the accused's possession of the jewels does not fit in with a case of suicide. No jewels were found on the body. If, then, it was a case of suicide, she must have taken off her jewels before going into the water, and either given them to some one or left them on the bank where the beads were, or elsewhere. The accused does not say that she gave them to him, nor that he found them on the bank or elsewhere. If they had been given to him, or if he had found them, it seems almost certain that he would have said so either when suspected, or afterwards, and would have been able also to produce the third kammi and the silver bangles and sattamanam, which the evidence shows she also wore. His failure to do this suggests that he may had an accomplice who received these as his share.
8. The finding of the necklace of beads with string unbroken on the bank is not inconsistent with murder, since the murderers might have taken it off the body by untying the string and have then dropped it on the bank. It is of little or no value, so they would hardly have cared to search for it for any time in the dark if it slipped from the hand.
9. I conclude that the suggestion of suicide cannot be accepted. Nor is the evidence consistent with the murder having been committed by any other person than the accused.
10. It is true that the woman was of such a character that there might be other persons who might have been prepared to murder her, but there is no evidence of the existence of any such persons, nor does such a suggestion fit in with the fact that it is the accused who had her chief jewels two or three days after her death, and who gives no explanation as to how he came by them.
11. I think the reasonable inference from all the evidence is that the woman was murdered by the accused. The Sessions Judge has imposed the lesser sentence allowed by law. I would, therefore, dismiss the appeal.
12. But as my learned brother does not take the same view, our opinions will be laid before another Judge in accordance with Section 429, Criminal Procedure Code.
Sundara Aiyar, J.
13. I have the misfortune, in this case, to be unable to agree with my learned brother in the conclusion he has arrived at. The general facts of the case have been stated in his judgment, and I consider it unnecessary to recapitulate them.
14. The three points for decision in the case are (1) was the body that was discovered in the pond that of Mahalakshmi? (2) if so, was she murdered by anyone or did she commit suicide? and (3) if she was murdered, was it the accused that murdered her? On the first question, the evidence of identification of body is, in my opinion, of an unsatisfactory character. The body was discovered only a long time after it had been immersed in the pond. Except below the knees the skeleton only was found and there was no flesh. All that the medical witness, the 4th witness for the prosecution, was able to swear to was that the body was that of a female and not that of male. In his opinion 'it is impossible to identify a person by the legs except where there are any marks or peculiarities in them.' It is not stated in this case that there were any peculiarities or identifiable marks in the legs of Mahalakshmi. They were stated to have been small but it is obviously impossible to rely on this circumstance as a reasonable ground of identification. Two cloths were found tied round the waist of the body and a cloth was found near the bank of the pond. The latter cloth has not been relied on by any of the witnesses for the prosecution as a means of identification. But the cloths wrapped round the waist of the corpse have been identified by some of the witnesses as those they had seen Mahalakshmi wearing while she was alive. A string of beads also found near the bank of the pond is said to have helped some witnesses to identify the body. In the inquest report (Exhibit B), four witnesses are stated to have recognized the body as that of Mahalakshmi. Only two of them, prosecution witnesses Nos. 5 and 6, were examined at the trial. The 5th witness, Latchanua, an uncle or cousin of Mahalakshmi, relies on the beads, besides the shortness of the feet; and toes, as means of identification. He admits that the beads are very similar to those ordinarily worn by the females of his caste. But he adds in cross-examination that the red beads in the string (which is composed both of black and red beads) are not worn by other females in his village. This latter statement is not corroborated by any other witness. In appearance, the string of beads is quite of a common type with no identifiable marks at all. The 6th witness, Appala Naidu, whose mother was a cousin of Mahalakshmi, identifies the body by the feet and by one of the cloths tied round the waist. Both the cloths have no identifiable marks. They are of a common type worn by females of the lower castes. The only reason alleged by the 6th witness for the prosecution for saying that one of them had been worn by Mahalakshmi was that it was a mazu bordered cloth. Before the Committing Magistrate, he stated that he did not remember which cloth had a mazu border and which a red border. He speaks only to one occasion on which he saw Mahalakshmi wearing it. Both the 5th and 6th witnesses admit that they went to the pond when the water was baled out for the discovery of the body because they had heard that Mahalakshmi had been murdered and that 'we could identify the corpse,' While there is no reason for supposing that they did not believe that the body was that of Mahalakshmi, and it may be that Mahalakshmi wore cloths of the kind that were found on the body, there is nothing improbable in the witnesses' readily arriving at the conclusion that the body was that of Mahalakshmi because they had already fully expected that such would be the case. It is difficult to say that they were able to recognise either the beads or either of the cloths as belonging to Mahalakshmi. The unreliability of their evidence is manifest from the fact that they were prepared to say that they were able to identify the body by means of the legs also. Mahalakshmi was, no doubt, missing from her village for some days when the body was discovered. But there is no evidence that any search was made for her in any of the neighbouring villages or elsewhere, nor is there any actual evidence on record that no other woman belonging to one or other of the neighbouring villages was missing. No help in identification is derived in the case by a comparison of the time when the death of the person whose body was discovered in the pond, must have taken place and the time at which Mahalakshmi was first missed. According to the opinions of several medical men that were read to us at the hearing, decomposition to the extent to which it had proceeded in the body would ordinarily take a much longer time than a week which is the period during which Mahalakshmi is alleged to have been missing before the 3rd May 1912, when the body was discovered in the pond. But it is impossible to arrive at any safe conclusion on this question as it is possible that the flesh might have been eaten away by fish except in the case of the legs which were found buried in the earth under the pond. Again, the evidence as to how long Mahalakshmi had been missing is also unsatisfactory. The 5th witness merely says he saw her a month before her death which apparently he assumes to have taken place about the 27th April, The 6th witness states at the beginning of his deposition that he heard of Mahalakshmi's death about three months before the date of his examination as a witness, which would be about the 15th of April. He says later on that 10 or 12 days prior to the finding of the body, that is, about the 23rd or 21st of April, he saw Mahalakshmi at Venkatapuram, an adjacent village. The other witnesses examined to fix the time when Mahalakshmi was last seen alive are the 14th to 17th witnesses for the prosecution. Of these the 14th witness says he saw her 'on a Saturday over two months ago,' i.e., about the 15th of May, which would be 12 days after the body was discovered. The witness gave the same account before the Committing Magistrate so far as this portion of his evidence was concerned, although he withdrew at the trial, other evidence which he had there given against the accused. The 16th witness for the prosecution merely says that he heard about Mahalakshmi's death a week after her death which gives no clue to the actual time that she was missing. The 17th witness also speaks vaguely to seeing her about three months before his examination, i.e., about 17th April. The 15th witness attempted to give more precise evidence. He says that he saw Mahalakshmi six days before the discovery of the body. In his cross-examination, he states he could not say in what month the deceased went to his village. I shall state presently my reasons for not accepting him as a reliable witness. I do not think the prosecution has adduced really reliable evidence to show when Mahalakshmi was last seen in the village such as would strengthen, the evidence as to the identification of the body. Mahalakshmi was evidently a wanderer with few relations and of loose moral character. She had no means of support, and it is quite possible she might have wandered away to some distant village or even migrated from the country in search of means of subsistence. There is, however, one important fact which makes me hesitate to differ from the conclusion of the Sessions Judge and of my learned brother that the body discovered was that of Mahalakahmi. If any other woman of the village or of any adjacent village had been missing, it is very unlikely that the matter would not have come out in the examination of the witnesses, although it is true, as I have already stated, that the prosecution did not take the trouble to adduce any evidence that any attempt had been made to seek out Mahalakshmi or that no other woman near the place was stated to be missing. I may at once state that there appears to be no motive on the part of any of the prosecution witnesses or of the Police for deliberately implicating the accused in a false case of murder, I take it that the witnesses and the Police have arrived at the conclusion that Mahalakshmi is dead and that she was murdered. On the whole, I do not base my dissent from my learned brother's conclusion regarding the guilt of the accused on the ground that the body discovered in the pond was not that of Mahalakshmi. But I am convinced that the evidence for the prosecution is so unsatisfactory that it is impossible to hold that the offence has been brought home to the accused.
15. I shall now deal with the question, assuming that the body was that of Mahalakshmi, whether she was murdered or whether she committed suicide. The medical evidence throws absolutely no light on the question. Nothing was observed near the pond which would show that a murder must have been committed there. To my mind the fact that a cloth and a string of beads were found near the bank of the pond is a very strong circumstance against the theory of murder. I find it very difficult to suppose that a murderer would have thrown there the cloth and the beads, which might bear marks of identification, to supply evidence against him. Why should he do so? On the other hand, it is quite likely that the deceased if she intended to commit suicide would put aside an unnecessary cloth and the string of beads before descending into the water to drown herself. She might, before she got into the water, have thought of tying a stone round her neck and might, for that purpose, have removed the beads from her neck. The only suggestion made on behalf of the prosecution is that the murderer might have left the cloth and the beads there through carelessness. But carelessness of this sort is, in my opinion, very improbable. Much reliance is placed on the fact that a stone was found placed on the knees of the deceased. It is argued that if the deceased kept one of the stones on her knees to help her in killing herself, it is very unlikely that she would not have, after she immersed herself in the water, struggled for her life and that the stone would not have fallen off from her knees. I am unable to attach much weight to this argument. How far she would have struggled would depend on her physical and mental condition at the time. It is quite possible that she was too dazed and too low in spirits to struggle much. It is also possible that she did struggle but that her struggle in her then condition was not sufficient to make the stone fall off from the knees. At any rate, the inference to be derived from the fact of the finding of the cloth and beads on the bank is far stronger than that which could legitimately be drawn from a stone being found on the knees. Again, Mahalakshmi was, according to, the evidence for the prosecution, a strong and healthy young woman. Is it likely that a single parson would be able to overpower and drown her? It is, no doubt, possible that she might have been first strangled and then put down under the tank, but it is improbable, I think, that a murderer would have undertaken this double task without the help of any one else. The prosecution does not suggest that any other parson was concerned in the alleged murder, but has, on the other hand, adduced evidence to prove that the deceased was last seen alive with the accused alone. I must add that at the trial much importance does not seem to have been attached by the prosecution to the fact that the stone had not fallen off from the knee. In fast, neither party seams to have bestowed serious thoughts on the question whether the case was one of suicide or murder while the evidence was adduced. Consequently, the evidence about the exact position of the stone when the body was dragged out is by no means of a precise character though several of the witnesses stated generally that a stone was found on the knees. I may note that at the inquest, the 5th witness for the prosecution stated that Mahalakshmi's people chided her for her improper conduct in abandoning one husband after another, and that she went away to Venkatapuram and again contracted another marriage there. It is admitted that she left her new husband also. May it not be that she felt herself a person who had lost her position in her society, and, being without friends or means of support, determined to put an end to her own existence? The strongest circumstance, on which the learned Public Prosecutor has relied in support of the theory of murder and no suicide, is the discovery of two kamnulu, belonging to Mahalakshmi in the possession of Ademma, the prosecution 3rd witness and wife of the accused, The discovery was made in consequence of information given by the accused himself, who is said to have offered them to the Police as hush-money. I do not dissent from my learned brother's conclusion that the kammulu are proved to have been made for Mahalakahmi and given to her by her last husband, Appiah, the 10th witness for the prosecution, some short time before her death. Appiah abandoned her a few days after his marriage; and, according to the prosecution case, she used to visit the accused after she was abandoned by the 10th witness. I also agree in holding that the accused's statement that the kammulu were given by himself to Mahalakshmi when he married her is false. He added that he got them back from her by 'good words and did not return them.' The question is, what inference can legitimately be drawn from this circumstance? If it is proved that a person was found, soon after the murder of another person, in possession of property which was on the person of the latter when last seen alive, an inference might, no doubt, be drawn in some circumstances that be obtained possession of the property by the murder of the deceased. I hold it to be essential to justify the inference that there must be satisfactory proof that the property was in fact in the possession of the deceased when last seen alive. The utmost that is proved in this case, in my opinion, is that the kammulu belonged to Mahalakshmi and that she was seen by some witnesses wearing them some time before she died. But I do not think it has been proved that she was wearing them at or shortly before the time of her death. The time of her death itself is not clearly established. The only witness who really speaks to having seen her wear the kammulu on the day on which, according to the prosecution, she was last seen alive, is Lakshmudu, the 15th witness for the prosecution. I am not prepared to act on the evidence of this witness. Both the prosecution witnesses Nos. 16 and 17, who speak to seeing the accused and the deceased together on the Saturday on which Mahalakshmi is supposed to have died and on the two previous days, were not examined at the inquest. It is not known when they narrated their story for the first time. It is easy for witnesses giving evidence after the lapse of a considerable time to imagine that the day on which they saw some person was a particular day. The 15th witness says that the deceased went to his house that night but can give no reason why she did so. He says she used to go to his house now and then. At first he stated only that he saw Mahalakshmi wearing the kammulu but in cross examination he said that he saw her wear the beads too when he saw her walking with the accused by the moon-light. I consider it extremely unlikely that he would have been able to see the string of beads which are extremely small in size by moon-light. The kammulu worn on the nose might no doubt be more prominent. But what occasion had he to remember the fact that she was wearing them on that day? On the other hand, it would be quite easy for him to imagine that she did, if he had seen her wear them before. Although he does not appear to have any motive for swearing falsely against the accused, he is at the same time a witness of no particular credit. I cannot accept his evidence without corroboration. The 16th witness also says he saw Mahalakshmi and the accused going together at 7 or 8 P.M. on the Saturday when she is supposed to have died. But he did not see her face nor did he talk to her. He, moreover, really does not fix by his evidence the dates on which he last saw Mahalakshmi. The 17th witness's evidence is utterly improbable. He says the accused actually asked him in the afternoon of the Saturday to help him in murdering Mahalakshmi, but that he attached no importance to that circumstance as Mahalakshmi and the accused were apparently on friendly terms. He saw Mahalakshmi several times on the same day after the accused had asked him to help him in killing her. But he did not tell her anything about it. There is, in my opinion, no satisfactory evidence that Mahalakshmi wore the kammulu in question at the time of her death, assuming that she was murdered. Neither prosecution witness No. 16 nor witness No. 17 was asked by the prosecution whether Mahalakshmi was wearing, when they last saw her, either of the cloths found wrapped round her body. It is not proved that Mahalakshmi used to wear the kammulu always. Again it must be observed that the kammulu were not all the jewels that belonged to the deceased or even all that she used to wear. Prosecution witness No. 15 says that he saw her wearing a silver bangle when he last saw her. The 17th witness says the same. The 10th witness, her last husband, says that he gave her also a sattamanam when he married her. The 9th witness also says that a sattamanam was given to her by the 10th witness. The 6th witness says that Mahalakshmi had rings also. None of these other jewels has been traced to the possession of the accused, and I hold that it is not proved that the kammulu were worn by Mahalakshmi immediately before her death. The 16th witness who is one of those who speak to seeing her with the accused on the night of Saturday does not speak to seeing her wearing the kammulu. Although I disbelieve the accused's story that it was he who gave the kammulu to the deceased, I do not think it follows that his statement that he got them from her by good words' must be false. Mahalakshmi seems to have had a great deal of affection for him; for, she went back to him after abandoning her last husband and after the accused himself had married Ademma. I sea no improbability in his having been able to obtain possession of the jewels from her, properly or improperly, is immaterial for the purposes of this case. Assuming that Mahalakshmi was wearing the kammulu some days before her death, I do not think it would be right to presume that she wore them at the time of her death and then to presume from the fact that the accused was found in possession of them soon after her death, that he obtained them by murdering her. It is generally unsafe to make such a presumption upon a presumption.
16. In this case, I consider it entirely unsafe to do so, for there is absolutely no motive proved on the part of the accused for committing so heinous a crime as murder. The evidence for the prosecution itself is that the accused and Mahalakshmi were on friendly terms with each other. On the very day that the murder is said to have been committed, Mahalaksmi gave Rs. 3 out of her own pocket to enable the accused to pay a fine which was imposed on him for his having killed a calf belonging to the 16th witness. The accused's wife, Ademma, did not object to his relations with Mahalakshmi and even used to meet her at the accused's threshing floor where she used to take him his meals. Mahalakshmi was a young and handsome woman, according to the evidence for the prosecution (see the deposition of the 10th witness). Admittedly, theft, was not the object of the murder. The accused is a man who cultivates lands paying Rs. 40 or 50 cist (P.W. No. 16). The motive alleged is that Mahalakshmi was troubling him by her visits though he did not care for her. I find it extremely difficult to believe this. There is no reason to suppose that she caused him any annoyance. The evidence of the 16th witness that the accused complained of her doing so is untrustworthy; and the witness seams to have been inclined to withdraw at the trial what he said about this circumstance before the Committing Magistrate. The absence of a reasonable motive for the murder is a most weighty circumstance in favour of the accused. On the whole, I am unable to believe the evidence that the accused was last seen alive with the deceased shortly before her death or that she was wearing the kanmulu at that time. The theory of suicide is not rendered improbable by the evidence on record. The probabilities point, in my opinion, to the conclusion in favour of suicide, and whether the case is one of suicide or not, I am of opinion that it is not proved that the accused murdered Mahalakshmi. I would, therefore, reverse the conviction and the sentence passed on the accused and direct his release from custody.
17. This appeal coming on for hearing under the provisions of Section 429 of the Criminal Procedure Code, the Court delivered the following
Sankaran Nair, J.
18. The Pleader who appears for the Public Prosecutor states that he has nothing to add to the observations in the judgments.
19. I assume without deciding it that Mahalakshmi was murdered. The oral evidence to implicate the accused is that of witnesses Nos. 15, 16 and 17 who say that shortly before her disappearance from the village the accused was seen in her company. I am of opinion that their evidence is not reliable, mainly for the reasons given by Sundara Aiyar, J. in his opinion.
20. The fact that her jewels were found in his possession is no evidence, unless it is shown that she had them on her person at the time of murder and he could not explain his possession.
21. The date of her murder is itself uncertain in this case and the relations that subsisted between the accused and the deceased do not render his possession suspicious.
22. Agreeing generally with Sundara Aiyar, J., I reverse the conviction, acquit the accused and direct that he be set at liberty.