K.N. Mudaliyar, J.
1. These two-appeals are filed by the tw0 appellants (Karunakaran, the first accused, and Jabamani Nadar alias Kanyakumari Comrade alias Ramu, the second accused) against their conviction for an offence under Section 302 read with Section 34, Indian Penal Code and the sentence of death awarded against them.
2. At one stage, we thought that this case falls within a narrow compass, but the more we delved deeper and deeper, the case presented some complex difficulties and the entire complexity arose from the fabrication resorted to in an unabashed manner by the investigating machinery as will be dealt with fairly elaborately in the later portion of our judgment. The prosecution would have it that the two appellants and one Thami-zharasan alias Ramaswami are the main participants in this dastardly crime of killing Viswanatham Pillai, village munsif of Orathur, while he was asleep on M. O. 1 in front of his cattle shed.
3. It is alleged, and there is substantial amount of evidence in support of it. that there has been a history of feud ranging over- nearly eight years between the deceased Viswanatham Pillai on the-one hand and the first appellant and his father on the other. The cause of their bitter enmity are many and they are fairly elaborately dealt with in paragraph 4 of the judgment of the trial Court.
4. The prosecution would have it that the first appellant nurturing this enmity against Viswanatham Pillai, took advantage of his Naxalite connection and exploited the services of the second appellant and one Thamizharasan for accomplishing the murder 6t his enemy Viswanatham Pillai (deceased). The prosecution went to the extent of suggesting that there was a conspiracy at Orathur during the harvest season in the year 1971 'to annihilate the said Viswanatham Pillai' as though he was a mighty agrarian-force and that the second appellant and Thamizharasan, as between themselves, , also continued the conspiracy on 25-4-1971 at Nevveli, At this stage, we would like to dispose of this part of the story of the prosecution, namely the conspiracy on the part of the second appellant and Thamizharasan (who is still absconding) end the first appellant. The learned trial Judge found n0 difficulty in finding that the first appellant is not a Naxalite and that the testimony of P.W. 7 for proving the conspiracy at Orathur is unbelievable, and also the testimony of P.W. 9 regard-ins the conspiracy at Neyveli on 25-4-1971. We are immensely impressed by the plea of the first appellant that he has absolutelv nothing to do with the Naxalite movement since he is not himself a Naxalite but he is a member of the D. M. K. Party to which he appears to have migrated from the Dravida 'Kazhagam Party in whose leader's company he found himself in a photograph. M. O. 9. We ourselves are certain that no member of the Dravida Kazhagam would at any stage defect over to the Naxalite movement. In this background of our finding as was done by the learned trial Judge about the total disconnection between the first appellant and the second appellant, we would like to examine the case as proved by the prosecution by the evidence of P.W. 4 who is the author of Exhibit P-l.
5. P W 4 is the younger brother of Viswanatham Pillai (deceased). He knew first accused (first appellant). He lived with his brother Viswanatham Pillai. On 26-4-1971, he saw a tube light burning near the cattle shed of his elder brother, Viswanatham Pillai. There was also a name board of the Police Station where a light was burning from 9 O'clock to 10-30 p.m. He was sleeping on the parapet wall situated on the, eastern side of the sluice near the scene of occurrence. His brother, Viswanatham Pillai the Village Munsif of Orathur. was sleeping as usual on a bench in front of the cattle shed near the Mathagu. P.W. 4 'woke up on hearing a noise at about 11-15 p.m. He heard the noise to the effect: 'Younger brother ! Karunakaran is running after stabbing me with knife 'Catch him'.' P.W. 4 stood up and saw Karunakaran. the first appellant, running eastwards from the place where he lay and his injured brother chasing him from behind. P, W. 4 came running. His elder brother, (deceased) fell down on the southern side', of the North Poothangudi Channel. P.W. 4 shouted and when he saw his elder brother, he was dead. He stated that there were bleeding injuries on the Body of his elder brother. There was also blood all over ' the body. A crowd gathered there. P.W. 4 went to the Police Station which is at a distance of 150 feet (about 50 yards) and gave the report,. Exhibit P-l, by about 11-30 P.M. on 26-4-1971. This has b P.W. 23, the Sub-inspector of orathur who just then returned after his prohibition raid.
6. So far the case present no difficulty. The prosecution could have been quite well content with this story which to our minds, appears to be natural the hand of fabrication is quite busy later P.W. 23 would have us the believe, he held inquest between 1 and 4 A.M. when P. Ws. 1, 2, 3, 4 and 5 were examined. At any rate P. Ws. 1 to 4 are put forward by the prosecution as eye-witness to the occurrence. P. Ws. 1 and 3 are healthy brothers of Viswanatham Pillai. P.W. 4 is afflicted with some infectious disease. Probably that accounts for the parapet wall on the near the sluice, particularly in the summer heat of a dry district like South arcot. P.W. 2 is put forward as the cartman of P.W. 5is also put forward as the cartman of P.W. 5 is also put forward as a witness who claims to have seen the first and the second appellants and a tall man 'coming form the east and going towards south'. About the direction. We will make the comment later. P.W. 5 claimed that the police enquired him when the body was there, meaning there by that he was examined during the inquest.
7. The learned trial Judge disbelieved the evidence of P.W.s. 6,7,8, and 9 allegedly pointed out by the second appellant and rightly too in our opinion. But the trial Judge appears some reliance on the testimony of P. Ws. 10 to 13 who were also pointed out by the second appellant while considering the case against the as testified, by P.Ws. 1 to 5 confession (retracted) and the extra-judicial confession about the occurrence made by the second appellant to P.Ws 10 to 13. The sole question which great deal of anxiety in the case put forward by during the alleged inquest through P. Ws. 1 to 5. P.W. 23 state that P. Ws. 1 to 5 were examined during the inquest between 1 A. M.and 4 A.M. P, W. 24 dawns on the scene at 4.30 A.M conveniently and immediately soon after the inquest hours. How he has been deputed by the deputy Superintendent of Police to reach the scene at 4.30 P.M. does not commend our credence or belief. If the copies of Exhibit p-1 are sent to the Deputy Superintendent of Police of Chidambaram, the same copy could have reached the Inspector, P.W. 24, with the same expedition at the same time. But the prosecution would have it that Kattumannargudi Circle Inspector had jurisdiction and therefore P.W. 24 had to get the orders from the Deputy Superintend of Police. There is absolutely no evidence produced by the prosecution as to when the copy of Exhibit P-l was sent to the Deputy Superintendent of Police of Chidambaram or when he received the copy. We do not believe that P.W. 24 appeared on the scene of crime by 4-30 A. M. In the further discussion of the evidence of P.W. 23. the Sub-Inspector. we have got to see the impact of the evidence on the case proved against the second appellant. At about 12 mid-night, P.W. 23 took up investigation and went to the scene of occurrence. He speaks about the available light burning about 6 feet south of the dead body of Viswauatham Pillai. P.W. 23 states that by about 00-30 A. M. on 27-4-1971 he prepared Exhibit P-9, the observation mahazar. He further stated that he despatched the inquest report, Exhibit P-13. on 27-4-1971 but the despatch register shows that it was despatched on 28-4-1971. His further evidence is that the breadth of the parapet wall of the culvert was just enough for a person to lie on.
8. P.W. 24, speaks about the surrender of the first appellant on 1-6-1971. He also states that he was asked by the Deputy Superintendent of Police to take up further investigation in this case since the Inspector of Police, Kattumannaraudi was absent. He also stated that the inquest was held even before he arrived at the scene of the crime. He further states that he handed over the case file to the C. I. D. P.W. 26 is the Deputy Superintendent of Police. Special Branch C. I. D. On 18-7-1971. he arrested the second appellant at Villupuram, He recorded the confessional statement of the second appellant. The admissible portion of the said statement is Exhibit P-12. He deposed that the second appellant pointed out the witnesses. P. Ws. 5. 6. 7 and others. On 18-7-1971 itself, as per the orders of the Superintendent of Police, Special Branch, C. I. D.. investigation of this case wag taken up by the Special Branch, C. I. D. It may be borne in mind at this stage that the act of the second appellant pointing out P.W. 5 is a ludicrous superfluity inasmuch as the prosecution claimed that P.W. 5 was examined during the inquest itself. P.W. 27 claimed that he took up investigation from 29-7-1971 onwards. On 30-7-1971 he examined P. Ws. 1 to 7. 14, 15 and other witnesses. On 31-7-1971, he examined P.W. 21. On 1-8-1971 he examined P. Ws. 9 and 11. On 2-8-1971' he went to Pidagam and examined P. Ws. 12, 13 and others. On 5-8-1971 he examined P.W. 20. On 12-8-1971 he examined P.W. 10 Rangarajan. On 14-8-1971 be examined P.W. 8. But he filed the charge sheet only on 3-2-1972.
9. The crucial question that .arises for our consideration is whether P. Ws. 1 to 5 were examined during the inquest on the early morning of 27-4-1971 between 1 A. M. and 4 A. M. There is no reason why the inquest report accompanied by the inquest statements should have been despatched as late as 28-4-1971. if these inquest statements were completed by 4 A. M. on 27-4-1971. This aspect is considered solely on the assumption that the. inquest statements- accompanying the inquest report Exhibit P-13 were despatched on 28-4-1971 to the Court of the Sub-Magistrate of Chidambaram. We are not certain that at any rate the inquest statements accompanying the inquest report, Exhibit' P-13, were despatched by the Sub-Inspector. P.W. 23, even as early as 28-4-1971, We are inclined to think that the inquest statements of P. Ws. 1 to 5 were prepared far later and probably smuggled into the Court of the Sub-Magistrate of Chidambaram.
10. Let us test it on the contents of Ex. p-l given by P.W. 4 who must have been examined by 1 A. M.. if really the inquest was held between 1 A. M. and 4 A. M. as claimed by P.W. 23. P.W. 4 does- not even claim to have witnessed the occurrence in its entirety. He speaks about his seeing the first appellant running away from the place where he lay and his elder brother chasing him behind for a very little distance. He woke up on hearing the noise to the effect:
(original in Tamil omitted.)
Judging the version of P.W. 4 as deposed by him in the Court of Session which is substantially similar to the statement made by him in the inquest statement, could he have elaborated this case so much within one or two hours as to include the second appellant and one Thamizharasan Exhibit P-l does not even use the word's: 'Karunakaran Vagaira'. A relentless examination of the contents of Ex. P-l would reveal that only the first appellant alone participated in the murderous attack on his brother Viswanatham Pillai. He does not even claim to have witnessed the entire occurrence in Ex. P-l at the earliest opportunity. Evidently. Exhibit P-l and copies of Exhibit P-l must have left the police station, beyond recall by the investigating authorities, to the Court of the Sub-Magistrate. The full-blooded version which is totally a false version is invented solely for the purpose of embroiling the second appellant and one Tamilarasan said to be absconding.
We do not believe that the inquest statements of P. Ws, 2 and 3 were ever recorded on 28th April 1971. It is unfortunate that the Sub-Magistrate of Chidambaram has initialled the inquest report Exhibit P-13 only on one side. He did not care to initial the accompanying supposed statements of P. Ws. 1 to 5. We cannot condone the indolence of the Sub-Magistrate in not being vigilant when tie failed to initial and put the date in the statements. To our surprise we find even the date stamp of the Court of the Sub-Magistrate, Chidambaram, not containing the date. The date alone is entered in hand writing. There is another seal found in the records which contains the date alone with the month and the year. Strangely the Sub-Magistrate of Chidambaram on the relevant date does not choose to use the stamp containing the date. The Sub-Magistrate ought to realise that the most important seal appertaining to his office is the date seal which must be kept in his personal custody and which cannot be Entrusted to any of his subordinates including the Magisterial staff. We do not find such a punctilious display of his sense of duty in the various documents said to have accompanied Exhibit P-13. In contrast to the unpardonable laxity of the Sub-Magistrate, we find the praiseworthy vigilance on the part of the, Sub-Magistrate who was in charge of this Court on 7-2-1972 who has initialled every page of even the statements under Section 161 (3), Criminal P. C. received by him into Court, The Sub-Magistrate of Chidambaram who was in charge on 28-4-1971 did not even choose to put the time of receipt of Exhibit P-l. He merely puts the date. We are unable to express any good opinion as to the proper discharge of duty by the Sub-Magistrate of Chidambaram. We want to make it clear that we are sceptical to view the receipt of the inquest statements said to have accompanied Exhibit P-13 as early as 28-4-1971. But there is one significant clue betraying the belated interpolation of these documents into the Court of the Sub-Magistrate. P.W. 26. when he took up investigation and took over the second appellant into his custody, should have perused the entire case diary right up to that date and he must have certainly gone through the so-called inquest statement of P.W. 5. If really the inquest statement of P.W. 5 was in existence as early as from 4 A. M. on 27-4-1971. where is the need for the second appellant to point him out or for P.W. 26 examining P.W. 5 The entire statement of P.W. 5 which is in consonance with his testimony in the Court would indicate the movements of the appellants and Tamilarasan as thirsty pot companions avid for drinking arrack through the good offices of P.W. 5 who suffered the second appllant Tamilarasan to comport ease in a bed furnished by P.W. 5.where is the need for the P.W. 5 (?) for. we presume have read the entire inquest P.W. 5 said to have from 4 A. M. on 27-4-197? What is the inference that we are entitled this material? We are strained to conclude that the inquest statement of P, W. 5 was certainly not in existence till 19-7-1971. It is only later than 19-7-1971 the inquest statement of P, W. 5 has been' successfully smuggled into the Court of the though it accompanied the inquest report, Exhibit P-13. If only the sub Magistrate of Chidambaram had been alert and vigilant enough to put the date and the initials and the time of receipt of each page of the inquest statement the implication of the second appellant would have been impossible.
11. P.W. 26 deposed that the second appellant pointed out P. Ws. 5. & and 7 and others. Naturally he must have recorded their statements. P. Ws. 5, 6 and 7 were examined by P.W. 27 on 30-7-1971. The statement of P.W. 6 recorded under Section 161, Criminal P. C. is received in Court on 7-2-1972 as is initialled by the Sub-magistrate who was in additional charge on 7-2-1972. If there was already the inquest statement P.W. 5 as early as 4 A.M on 27-4-1971 there was no further need for another examination under Section 161 (3). Criminal P. C. by P.W. 27. Only one conclusion is possible, that is the so-called quest statement of P.W. 5 said to have been recorded as early as 27-4-1971 was not in existence until both P.Ws. 5 and 6 were examined according to P.W. 27, on 30-7-1971. Even the statement of. P.W. 6 reached the court only in the month of February 1972. The statement of P.W. 5 must have been recorded by P.W. 27 almost simultaneously along with the statement of P.W. 5 must have been smuggled no hesitation in coming to the conclusion that the so-called inquest statement of P.W. 5 must have into the Court under the c quest statement only prior to 7-2-1972
12. In as much as there is no exact time of despatch of Exhibit P-1 notice in the despatch register, which we have examined at great length faction we are unable to make a comment on the absence of the names of the eyewitnesses like P. Ws. 1. 2 and 3 and draw the relevant inference. In our view, case of the prosecution as testified by P.W. 4. corroborated by the contents of Exhibit P-1 right up to the mid-night of on 27-4-1971,is simple and clear. More it is honest and natural.
13. ' But presumably or evidently. here is a case of a petty mirasdar who has been done to death. The prosecution thought:
Why not we take advantage of this murder and implicate this second appellant and Tamilarasan who are at large and who seem to give a lot of anxiety and trouble to the forces of law and order by fomenting agrarian trouble and class hatred
But unfortunately Exhibit P-l does not even speak of the words 'and others' or 'Vagaira'., Therefore, they have got to improvise a few more eye witnesses and press them into service for speaking about the participation of the second appellant and one Tamilarasan (a dark tall man). For this purpose the prosecution has fictitiously brought into existence a bunch of liars, P. Ws. 1. 2, 3 and 5. Poor P.W. 4 was compelled to speak to a version which ought to accord and harmonise with the version given out by P. Ws. 1. 2 and 3.
14. Let us look at the conduct of each witness. P.W. 1. Gnanasekharan claims that he came out of the office shed which was on the opposite of the cattle shed and the bench where Viswanatham Pillai had taken his bed on that night. He goes to the extent of saying that he saw his elder brother sitting on the eastern side of the bench holding hi- waist., He claims to have seen the subsequent stab-bings by the first appellant and also the attempts of Viswanatham Pillai try catch the legs of the first appellant. This is presumably conceived only for the purpose of explaining the sole presence of the first appellant, as though P.W. 4 remembered the presence of the first appellant since A-1 gave the last blow. The place wherefrom P.W. 1 came out to see tile occurrence is only a very short distance It was undoubtedly suggested to this witness that he did take his bed elsewhere Now. if he were really sleeping in the office shed of his brother, by the time he raised his voice about the first appellant running, after cutting him. certainly P.W. 1 would have seen his brother and even assuming that he made some abortive and fruitless chase behind the runaway assailant, his conduct would be to proclaim to the whole world that he was going to the police station. There was at least 15 minutes to one hour before the alleged inquest statements were said to have been brought into existence. He never went to the police station. He is more healthy than P.W. 4. He is the youngest of the brothers. He does not suffer from any physical ailment or illness. He never makes his appearance at the police station. But the prosecution will have to get over the belated inquest statement brought into existence. If he were really in the village they must make it appear that he was. examined at least during the inquent between l A. M. and 4 A. M. They have got to necessarily fall back on such a hypothesis. We do not think that P.W. 1 was available during that night in the village, for, had he been there witnessing the occurrence as he pretends to have witnessed, his conduct-would be such that he would repair his wav to the police station much earlier than the disabled P.W. 4.
15. P.W. 3. is another brother. He claims to have made a return journey from Chidambaram to Orathur. His cartman is P.W. 2. They returned from Chidambaram after 9 P.M. went to the scene of occurrence and claimed1 to have chased the assailant along with P.W. 1, P.W. 3 even claimed to have had a torch light. P.W. 3 did not even shout as he ran towards the scene of occurrence although he claimed that he saw three people cutting his brother to death. He even went to the extent of saying that he did not even enquire why P, W. 2 shouted 'Ayyo'. Even P.W. 2 claims to have jumped from the cart and run away to the scene of occurrence. He even said that the second appellant fell down obstructed by a bamboo bush, on the way and that he was helped by the other accused. 'They ran a little distance and turned towards south and disappeared, They claim to have seen these accused because of the torch light and also the light from the tube light. What a happy and a beautiful coincidence invented by the prosecution. These people start in a bandy armed with a torch light exactly at such an opportune moment from Chidambaram when they exactly arrived at the precise moment of the appellants 1 and 2 and. another cutting the brother of P.W. 3 to death. The invention is so artificial that we can only call this invention to be an absurd lie. In order to improve this, here is P.W. 23 who went to 1 the extent of stating in his evidence that he saw also a double bullock cart with two bulls at the road junction just 50 feet north east on the eastern culvert on the main road. This is in order to corroborate the testimony of P. Ws. 2 and 3 that they travelled by a cart and that somewhere at the spot P.W. 2 halted the cart and jumped out of the cart. What a puerile corroboration invented by P.W. 23. Even animals have homing instinct just like birds. The bulls have a tendency to journey towards home even when there is no cartman particularly on their home ground and they would not story there. Exhibit P-9 which reaches the Court of the Sub-Magistrate on 29th April 1971 also contains an averment said to have been recorded at 00-30 A. M. to the effect that the bulls were near the scene of occurrence. We refuse to believe that the bulls would be staying there with the bandy for over a period of nearly one hour and 15 minutes. Even P.W. 5 who adds on artificial embellishments in his evidence in the Court of Session, deposed that after 10 minutes, a bullock cart went from east to west. This improvement is invented by P.W. 5 just for the purpose of corroborating the evidence of P. Ws. 2 and 3 in regard to the existence of a cart at that time. But P.W. 23 stated that P.W. 5 did not tell him (assuming that the inquest statement of P.W. 5 was recorded as early as 27-4-1971) that a cart passed that way. We refuse to place an iota of reliance on any particle of the false evidence of P. Ws. 1. 2 and 3. We find' that they are not eye witnesses to the occurrence and their evidence has been designedly and fictitiously got up for buttressing up a case falsely trumped up against the second appellant and one Tamilarasan. We have already indicated the belated inquest statement of P.W. 5 which must have come into existence only on or after 19-7-1971. The entire record would make it appear that this Tamilarasan is a daring criminal who was being so closely watched for arrest, but the manner in which P.W. 5 talks about, the movements of the second appellant and Tamilarasan and the first accused in the house of P.W. 5 and in the very street wherein the police station is situated would indicate that he was the least apprehensive of his capture by the vigilant police. It looked as if P.W. 5 wanted to make it appear that Tamilarasan in the company of appellants 1 and 2 came for drink in a care-free manner almost with & reckless disregard for his arrest. A perusal of the after portion of the inquest statement of P.W. 5 would clearly show his medical knowledge of the injuries sustained by the deceased Viswanatham Pillai as rivalling that of an expert doctor himself. This is another indication of the statement being prepared in the light of the post mortem certificate. P.W. 5 also indicated that his alleged inquest statement would show that the first appellant is armed with a knife. (Karunakaran had a knife in his hand and the tall blackman had a knife in one hand and an aruval in another hand). In the Court of Session P.W. 5 omitted to state this because his immediate conduct in not disclosing the names of the culprits or their marks of identity is self-condemnatory. In the Court of Session, P.W. 5 resiled from the earlier version embodied in the alleged inquest statement because, the omission to mention in the trial Court that the first appellant was armed with a knife and a tall black man with a knife and aruval, already adverted indicates 'sinister significance', to use the language of the learned Additional Public Prosecutor (Sri Rajamaniekam). P.W. 5 testified about the movement; of accused 1 and 2 and others in the ea-stall of the, first accused, wherein he mentions the presence of P.W. 6 as on looking after the tea-shop. He also speaks- about the movements (not merely of the 25th April, 1971) of the accused and Thamizharasan on the 26th in and around ; his house. Besides, he mentions about in movements after the three persons left the house. He mentions about the manner in which they concealed themselves behind a tamarind tree near the scene of occurrence. But an obliging tractor at the. crucial time lights- up the faces of the three participants in the crime including the two accused. Not content with that, P.W. 5 leaves the place after ten minutes. What a beautiful coincidence again. A bullock-cart comes its way. But again he is not in a hurry to get this telescoped into such a jumble of events as to create a confusion. He answers calls of nature for another ten minutes and then, when he went to wash himself in the channel, it was exactly at that appropriate time that he heard the noise from the house of the deceased Village Munsif. He deposed that accused 1 and 2 and the tall man came from the east and want towards the south. Undoubtedly these three persons could not have come from the east, for. after the dastardly crime, whoever was the assailant or were the assailants, they must-have run, as mentioned in Ex. P-l. towards the east and certainly east. P.W. 5 is a shameless been pressed into service By the prosecution to give out this perjured version.
16. The only remaining witness implicating the second accused. Thamizharasan and the first accused is P.W. 4, Judged on the anvil or the touchstone of the contents of Ex, P-l, we re inclined to think that Poor P, W. 4 h is been compelled to fall in line with the version of P. Ws, 1, 2 and 3. His evidence has been dragooned into harmonizing with the testimony of P. Ws. 1, 2 and 3. We sympathise with P.W. 4. so far as he has the temerity to implicate the second accused and Thamifcharasan in the case, We shall revert back to his testimony in so far as he has implicated the first accused, later, when considering the arguments submitted by Mr. Gopalaswami on behalf of the first accused. We can place no reliance on the testimony of P.W. 4 in so far as he implicated the second accused and Thamizharasan in the case of murder of Viswanathan.
17. Although the second accused was arrested as early as on 18-7-1971 and the charge-sheet was filed as late as on 3-2-1972, it is exceedingly strange that the identification parade for the second accused was not arranged at all for P. Ws. 1. 2, 3. 4 and 5 to identify the second accused, particularly in the light of the alleged inquest statements of P. Ws. 1 to 5, if they were existing at all. The failure to hold an identification parade would reinforce our conclusion that the alleged inquest statements were brought into existence far later and smuggled into the Court of the, Sub-Magistrate. We are clear in our minds that somebody in the office of the Sub-Magistrate's Court is undoubtedly delinquent in this sordid affair. He must be punished after due enquiry. After having disposed of the principal eye-witnesses to the occurrence (P. Ws. 1 to 4 and 5). we are inclined to examine the reliability of the testimony of P. Ws. 10 to 13.
18. We are now left with the -judicial confession made by the second accused to the Sub-Magistrate, Chidambaram, in Ex. P-4. recorded as late as. 2-8-1971. This has been retracted by the second accused. He has stated that he was under coercion and dictation of the C. I. D. His statement made to the Sub-Magistrate (P. W. 17) is riot voluntary or true. Therefore, we are constrained to fall back upon the legal imperative of seeking for a general corroboration of the averments found in Ex, P-4. Hardened as Naxalites are, we shall even assume that the second accused have a confessional statement which, as he claims, is not voluntary or true. But is there a general corroboration The testimony of P.W. 26 that the second accused pointed out P. Ws. 10 to 13 is open to objection. This cannot be brought under Section 27 of the Evidence Act. as it did not lead to the discovery of a fact. In H. P Administration v. Om Prakash : 1972CriLJ606 the Supreme Court has pointed out:
In the Full Bench judgment of seven Judges in Sukhan v. The Crown ILR (1929) Lah 283 : AIR 1929 Lah 344 : (1929) Cri LJ 414 which was approved by the Privy Council in Pulukuri Kotaya's case (1947) 74 Ind APP 65 : AIR 1947 PC 67 : (1947) Cri LJ 533 Shadi Lai, Section 4, as he then was speaking for the majority pointed out that the expression 'fact' as defined by Section 3 of the Evidence Act includes not only the physical fact which can be perceived by the senses, but also the psychological fact or mental condition of which airy person is conscious and that it is in the former sense that the word used by the Legislature refers to a material and not to a mental fact. It is clear therefore that what should be discovered is the material fact and the information that is ' admissible is that which was caused that discovery so as to connect the information and the fact with each other as the 'cause and effect'. That information which does not distinctly connect with the fact discovered or that portion of the information which merely explains the material thing discovered is not admissible under Section 27 and cannot be proved. As explained by this Court as well as by the Privy Council, normally Section 27 is brought into operation where a person in police custody produces from some place of concealment some object said to be connected with the crime of which the informant is the accused. The concealment of the fact which is not known to the police is what is discovered by the information and lends assurance that the information was true. No witness with whom some material fact, such as the weapon of murder, stolen property or other incriminating article is not hidden, sold or kept and which is unknown to the police can be said to be discovered as a consequence of the information furnished by the accused. These examples, however, are only by way of illustration and are not exhaustive. What makes the information leading to the discovery of the witness admissible . is the discovery from him of the thing sold to him or hidden or kept with him which the police did not know until the information was furnished to them by the accused. A witness cannot be said to be discovered if nothing is to be found or recovered from him as a consequence of the information furnished by the accused and the information which disclosed the identity of the witness will not be admissible.
It is true. that in a sense this can be brought under Section 8 of the Evidence Act, but the learned Sessions Judge has not chosen to give any reasons for accepting the extra-judicial confession said to have been made to these witnesses. In our view, the extra-judicial confession has also been retracted and, inasmuch as these witnesses have been examined as late as July 1971, or even later, we are unable to place any reliance on the retracted extra-judicial confession. This extra-judicial confession could easily be manufactured by the prosecution when once the formal pattern and set up is designed and settled, earlier. It is very easy to dovetail them into the scheme later. At any rate, in view of the belated nature of the disclosure on the part of P. Ws. 10 to 13, we do not place even a particle of reliance on their evidence. We are inclined to think that the testimony of these witnesses (P. Ws. 10 to 13) constitute unreliable perjury.
19. So far as the case of the second accused is concerned, we have no hesitation in rejecting the entire testimony placed before the Court by the prosecution. We accordingly set aside the conviction and sentence of the second accused under Section 302 read with Section 34 of the Indian Penal Code and acquit him. It is hardly necessary for us to observe that the case against Thamizharasan is dead before it is born, and so far as his case is concerned no effort need be wasted against him.
20. Coming to the case against the first accused, we shall deal with the submissions of Mr. Gopalaswami, who argued rather vigorously and vehemently against our accepting the prosecution case against the first accused. His main attack is that here is a prosecution which has produced such a stupendous amount ,of perjured evidence for the false implication of the accused including the first accused. Where is the Court going to draw the line in rejecting the chaff and accepting the grain separated from the chaff Where are the golden grains for us to unearth in this vast sandy desert of perjured evidence Undoubtedly, there appeared to be some apparent plausibility in this argument, but we find no substance in it. Here is the statement of P.W. 4 who was afflicted with- the fell disease of leprosy, lying on a parapet wall, perhaps avoiding the social ostracism, which is provoked by the sight of. a leper and which is so much prevalent on so extensive a scale in the villages. He has absolutely no motive to implicate the first accused. Undoubtedly; as we have already observed^ there has been a history of a bitter feud spanning over nearly a decade between the first accused and his father on the one hand and the deceased Viswanathan, on the other. The other healthy brothers KP. Ws. 1 and 3) might be more interested perbaps in implicating the first accused, but certainly not P.W. 4, for he has not much to enjoy in this world, suffering as he does from his cruel ailment. Indeed, the averments made by, him in Ex. P-l are so natural, that he does not even pretend to be an eve witness to the entire occurrence. Aroused by the dying shrieks of his brother, he wakes up and sees the desparate attempts of the fatally injured brother to chase the assailant, namely, the first accused. He sees the first accused running away from the scene. Look at his fairness. He does not even arm the first accused with a weapon, much less a blood-stained weapon. He immediately goes to the police station and lays a complaint in Ex. P-l. The prosecution would have succeeded in proving their case against the first accused to the hilt had it contented itself with the examination of P.W. 4 as the principal eye-witness, corroborated by the contents of Ex. P-l, and the testimony of P.W. 23 as the person who recorded Ex: P-l, and also by the examination of the doctor who could speak to the postmortem certificate. Nothing else is necessary and nothing more is necessary for proving against the first accused. But the prosecution has its own genius in complicating a simple case by fabricating hand which has been exposed in this case the earlier parts of our have no hesitation in accepting the bare outline found in Ex, P-l and the testimony of P.W. 4 so far- as the implication of the first accused in the murder of vishwawanathan 'is concerned. As we have stated- earlier, the case presented meshy intricacies till 12 mid-night 26/27-4-1971. It was only in the later days that the case got entangled into the thorny briars of manipulation. We are impressed with the testimony of P.W. 4 so far as he testified to the participation of the first accused in the crime of the murder of his brother, Viswanathan corroborated by the contents Ex.P-1
21. Another attack made by Mr.Gopalaswami is that P.W. 23 is inimically disposed towards the first accused and his father. There have been cases and counter cases between these two parties namely, the first accused and his father on the one hand, and the Sub-Inspector (P. W.. 23) on the other, It is true that there have been some cases, but we do not think that P.W. 23 was so diabolical to implicate the first accused falsely in this crime. If really Ex. P-l came to recorded far later as contended for by the defence, Ex P-1 would have assumed a different form, P.W. 4 would have appeared to be a full-blooded eye witness to the entire occurrence. Such a picture was not presented by him in the earliest document, Ex. P-l. If really the Sub-Inspector were so evil-minded the contents of Ex. P-l, he could have very well implicated the father of the first accused also as a co-accused absolutely no hand in making any false implication so far as Ex. P-1 is concerned In fact, in the later inquest statements we have our sympathies with his poor helpless P.W. 23 who could not but attune himself to the by his superiors. Even in the later stages of manufactured and fabricated inquest statements the father of A-1 implicated although two others, were implicated. The learned trial Judge has given good and sound reasons for contents of Ex. P-l and also the testimony of P.W. 4. We express our whole hearted endorsement of the reasons given by the trial Judge for accepting the document, Ex. P-1
22. The learned counsel made a further submission that in the light of the testimony of P. Ws. 1, 2 and 3. There are the certain material discrepancies. We have made it clear that the contents of Ex. P-l ' and the testimony of P.W. 4, so far as the implication of the first accused is concerned, could not be scrutinised, examined or tested on the touchstone of the perjured evidence of P. Ws. 1 to 3 and 5.' We have already expressed our view that P. Ws. 1 to 3 and 5 are unashamed liars and perjurers. They have no compunction or conscience in giving false evidence, propelled by the prosecuting agencies. Therefore, such discrepancies, viewed in the background of the testimony of P. Ws 1 to 3 and 5 are of no material or decisive consequence and do not present any hurdle or bar to our total acceptance of the contents of Ex. P-l and the testimony of P, W. 4.
23. Yet another argument of the learned Counsel is that here is P.W. 4 who has not implicated the second accused and Thamizharasan and that because lie has failed to mention the names of the second accused and Thamizharasan, who, according to the prosecution, participated in the attack of murder on the victim (Viswanathan), the testimony of P.W. 4 is at least open to doubt. We are afraid that this argument can be turned against the defence with a deadlier effect. We have already found that the second accused and Thamizharasan have been falsely implicated in this case. If really the second accused and Thamizharasan were assailants along with the first accused, there was no plausible reason for the failure on the part of P.W. 4 to refer to those participants as 'two other persons' (for he might not have known their, names). He would have at least mention-Ned the first accused 'and two others' in Ex. P-l which he did not choose to do. 'That only shows the candid, natural and truthful version of P.W. 4 embodied in -Ex. P-l at the earliest opportunity.
24. We confirm the conviction of the first accused under Section 302 of the Indian Penal Code and the sentence of death awarded against him. We do not find any circumstances constituting extenuation of the crime. On the contrary, there are the elements of aggravation of the crime of murder. It is true that both the murdered victim and the first accused were on deadly inimical terms. But that constitutes a double-edged weapon, and that is exactly the reason why the first accused participated in the murder of Viswanathan. But what time has he chosen , He chose his victim when he was slumbering quietly and peacefully on a bench before his cattle shed, in the summer weather of South Arcot District, The crime is dastardly in the extreme. He did not even alert the deceased and face his opponent in1 cutting him to death. Here was a sleeping man, unarmed and defenceless who became a victim to. .this murderous attack from the first accused. We consider that the sentence of death is the only appropriate sentence to be awarded against him. The appeal filed by the first accused (Criminal Appeal No. 24 of 1974) is accordingly dismissed.
25. Before parting with this case, we would like to observe that India is a land of freedom under law. Even the crimes of Naxalites must be legally proved before courts of law. We cannot treat or equate Naxalites as hardened criminals and hang them on the merest production of flimsy and fabricated evidence. Undoubtedly there is in this country functioning vigilant and independent judiciary whose legal duty is to scrutinise every piece of evidence forged in proof of the guilt of the accused, before they can be found guilty of the offence with Which they are charged, and convicted. It is saddening to notice that the Sub-Magistrate, Chidambaram, has not done his duty properly in this case. A departmental enquiry must be conducted against his acts which constitute dereliction of duty, particularly in a case of such magnitude and complexity. His conduct, viewed in the light of the vigilant' diligence of the other Sub-Magistrate, who was in additional charge, is really deserving of censure at our hands. The various labyrinthine infirmities that have been sought to be covered up by the glossy appearance of valid evidence have enjoined on us a duty to issue the following instructions for the guidance of the Magistrates (which may be embodied in the Manual of Instructions for the Guidance of Magistrates in the Madras State).
26. While hearing referred trials and criminal appeals, we have come across instances where there was inordinate delay in sending the complaint given to the police and the printed form first information report to the Sub-Magistrate. We make the following suggestions to ensure that the really guilty (legally proved to be guilty) may not escape the clutches of law and the really innocent may not be falsely implicated by the ingenuity of the prosecuting machinery.
27. In, some instances we were not able to find out at what precise point of time on a particular day the complaint made to the police, and the relevant first information report were received by the Sub-Magistrate, for they contained only the initials of the Sub-Magistrate, and the date. The importance of noting the exact time cannot be over-stated or over-emphasised. We have also come across instances where we could not be sure whether the inquest report and the statements of witnesses recorded during the inquest accompanying the inquest report had been sent to the Sub-Magistrate on the day when they purported to have been sent, since they did not contain the Initials of the Sub-Magistrate with the date of the receipt of the same. In our note dated 28-3-1574 we had stressed the importance of noting the time at which and the date on which these documents were received by the Sub-Magistrate, since the guilt of the accused or his innocence could be gauged, measured and determined unmistakably from certain documents received by the courts in good time and we find that a Circular, R. 0. C. No. 2272-A/74-F1 dated 20-6-1974 was sent to all the Magistrates. In the instant case we had grave doubts whether the in-(quest report and the statements of witnesses recorded during the inquest and said to have accompanied the inquest report were received by the Sub-Magistrate on a particular day, for the Magistrate had initialled the inquest report, but in the, date seal which was affixed to the Inquest report the date was written in ink. The statements of the witnesses recorded during the inquest, however, did not contain the initials of the Sub-Magistrate at all. There was a lurking and gnawing suspicion in our minds whether they were smuggled into the Court of the Sub-Magistrate belatedly and far later. We are therefore of the opinion that it is imperative that the following documents should be despatched immediately, without any delay by the investigating officers to the Sub-Magistrate. The Station-House Officer should record the time of the actual despatch of the various' documents in the various registers, particularly, the statement recorded u/s. 154 of the Code of Criminal Procedure. On receipt of the said documents, the Magistrate should initial the same, noting therein the time and date of the receipt of those documents. This would provide the only judicial safeguard against subsequent fabrication of such documents in grave crimes. Therefore, as the Manual of Instructions for' the guidance of Magistrates in the Madras State does not contain any instructions to the Magistrates in this regard, we suggest that the same may be, brought up to date by incorporating in it the circulars which had been issued from time to time for the guidance of the Magistrates. The following are documents of special importance which, in our opinion, should be despatched by the investigating officers without any delay to the Magistrates, and they should bear the initials of the Magistrate with reference to both the time and date of their receipt.
1. The original report or complaint I under Section 154 of the Code of Criminal Procedure.
2. The printed form of the first information report prepared on the. basis of the said report or complaint.
3. Inquest reports and statements of 'witnesses recorded during the inquest.
4. Memo sent by the officers to doctors for treating the injured victims who die in the hospital subsequently and the history of the case treatment.
5. Memo sent by the doctor to the police when a person with injuries is brought to the hospital, or the death memo sent by the doctor to the police on the death of the person admitted into hospital with injuries.
6. Observation mahazizars and mahazars for the recovery of search lists and the statements given by the accused admissible under Section 27 of the Evidence Act, etc., prepared in the course of the investigation
7. The statements of witness recorded under Section 161(3) of the code of Criminal Procedure.
8. Form No. 91 accompanied by material objects.
28. By reason of certain peculiar and unsatisfactory features we wanted to satisfy our through the various entries in the general diary, the pocket Sub Inspector (P. W. 23) and the despatch register. It is rather odd that there is no mention of the time despatch of Ex. P-l to the various authotiries 26/27-4-1971. The prosecution did not place for our perusal the entries in the pocket diary of the Sub-Inspector (P.W. 23) on the simple ground that it was further represented by the learned Public Prosecutor that the general diary for the relevant dates and certain other dates was not available, again on the simple ground that it was missing. Would like to stress the desirability and need for preserving the pocket diaries of the investigating Officers, the entries in the general diaries and dispatch book with more elaborate details, for at least five years. In the interests of justice, the preservation of these documents is essential and desirable.