1. Accused 1 and 2 together with one Guddi Peeran were charged before the learned Sessions Judge of Cuddappah with the murder on 12th March 1939 of a woman Golla Nagamma. Guddi Peeran who was accused 3 was acquitted; accused 1 and 2 were convicted and sentenced to death and they now appeal. The plan Ex. P indicates roughly the scene of Nagamma's death. She lives at Venkatapuram which is 2i miles from Prodattur. On the 12th March, some time before midday, she was alivE.P.W. 3, her husband, said that she gave him his food before he left for Prodattur, and P.W. 2, her sister, was with her in her house on that morning. Some time after noon she was found dead, having been throttled. There is no doubt whatever that she met her death at about midday on the 12th. No cross-examination was addressed to her sister, P.W. 2, or to her husband, P.W. 3, to suggest that the deceased had in fact met her death long before noon on the 12th, even so early as late on the previous night. This aspect requires a passing reference because the Lady Sub-Assistant Surgeon, relying largely on statements in text-books, was inclined to say that from the appearance of blisters on the body death must have taken place from 22 to 35 hours prior to her examination which was at 7 A.M. on the 13th. Even 22 hours before 7 A.M. when blisters were seen on the body would mean, if the doctor's premises are correct, that the woman was alive in the early hours of the 12th; and 36 hours before would mean that she met her death on the 11th.
2. Theoretical evidence of this description is not of value unless it is exhaustive with regard to all possible circumstances. This body had been left in a March sun from about noon to sundown on the 12th, if the prosecution story is correct, and all night in the open air. The text books do not deal with circumstances such as these, but ordinary experience shows that in those circumstances decomposition sets in with great rapidity. It is notorious that bodies are burnt or buried in this country with in a few hours of death. We should require the clearest possible evidence of the time when blisters appear under circumstances such as those before us in order to prefer the deductions based on such theories to the clearest evidence of the fact that this woman was alive late in the morning of the 12th. There is no question in our minds that she met her death at about noon on that day. It is clear also from the medical evidence that she was strangled. P.W. 2, Sayamma, claims to have witnessed Nagamma's death. She bears out P.W. 3, the husband, who says that he had gone to Prodattur on the morning of the 12th for work. P.W. 2's story proceeds as follows : The deceased was wearing, as was her custom, on her body gold katlu, gold kantini gundulu, gold thalakulu, gold rettakadiyam, gold bendu kammalu, 'gold upper earrings and silver kala kadiyalu. P.W. 2 took the buffaloes out leaving her sister in the house. She grazed the buffaloes, brought them back, collected the buffalo dung and stacked it. A little before noon she returned home and told her sister that she had stacked the collected buffalo dung near the palmyrah tope. The deceased left, bidding P.W. 2 to follow after she had her food. When she left the deceased was wearing the jewels mentioned.
3. After her meal P.W. 2 went to the scene and states that she saw accused 1 'accompanied by two strangers' throttling her sister. Her conduct was then just what one would expect of a little girl, namely she became afraid and ran home and reported the matter to her aunt and three other persons who have not been examined. There is however ample evidence on the record that this little girl at once reported to her aunt and told her what she had seen. P.W. 6, Chinna Bali, bears out the latter part of P.W. 2's statement. He says that P.W. 2 came crying and told P.W. 5 that accused 1 and two strangers were throttling and killing her sister. It is convenient to mention here that the examination-in-chief in this case does not appear to have been very satisfactory. The statement of P.W. 2 that she saw the accused accompanied by two strangers throttling her sister was obviously not an adequate recording of her evidence; but it is plain beyond doubt that she at once reported to her aunt in the hearing of others that all three were throttling her sister deceased, and no cross-examination was directed to suggest that the two strangers were not taking part.
4. It is obvious from the learned Judge's judgment who after all recorded the evidence that in the words of his judgment 'there she (P.W. 2) saw the three accused in the act of throttling the deceased.' P.W. 6 and others went to the scene and P.W. 6, at the request of P.W. 2, went to Prodattur to tell P.W. 3 and he found P.W. 3, told him and brought him baok to the villagE.P.W. 2 identified two of the jewels - kantini guntulu and bendu kammalu - after the accused's arrest. She saya she was able to identify the bendu kammalu especially because there was a dent on one side of it due to her niece (the deceased's daughter) treading on it. There remained on the body the gold thalukulu, gold upper earrings and the silver kala kadiyalu and the other jewels were missing. Ill does not seem to us that any cross-examination was addressed to P.W. 2 to suggest that her identification of the jewels was faulty. It may be said that the cross-examination in the case of accused 1 was especially directed to suggest that she was swearing falsely owing to enmity against accused 1 and naturally her identification of accused 2 and 3 was questioned. It should be stated here that there was material on the record brought out by the defence suggesting that accused 1 had previously been involved in a case of theft, for it appears, according to Ex. 6, that the deceased had given information regarding this to the authorities and that as a result the village elders ordered the accused to pay Rs. 80 to Kondayya, the man from whom the jewels had been stolen.
5. The defence relies on this incident to suggest that it was for this reason that accused 1 has been implicated in this case. This was put directly to P.W. 3 in cross-examination. P.W. 3 received the hews at about 4 P.M. from P.W. 6 - it may be stated that some of the times are vague in this case - and he (P.W. 3) returned at once to Venkatapuram. He sent P.W. 11 to fetch the village munsif who resides in Prodattur. P.W. 3 has been much criticised. His conduct is said to be remarkable. Why did he not when he received the news at Prodattur at once complain in Prodattur? And why did he go first to his village? The answer to all this is that it is unsafe to say what any man might or might not do on receiving the news that his wife had been strangled. It is at least safe to say that there is nothing remarkable in his at once going to where the body of his wife lay. The village munsif states that he was informed (and it must have been at about 5 o'clock) by P.W. 5 whereupon he proceeded to the spot and examined P.W. 3 at the scene. He states that he recorded P.W. 3's statement but did not take his thumb impression. The reports Exs. D and D-1 were sent to the Sub-Magistrate and the police. That by the police was received at 10-20 P.M. and by the Sub-Magistrate at 1 A.M. P.W. 3 stated in his evidence that he gave a dhava - or complaint - to the village munsif and that it was attested by five persons including P.W. 11, but the village munsif states that no written complaint was given and P.W. 11 states he knows nothing about this dhava. On this the defence build the theory that a written dhava was given stating probably that persons other than the accused had committed the murder or that persons unknown had done it, that it has been destroyed after it was decided to foist this case on accused 1.
6. We entirely reject this theory. Exs. D and D-1 were sent by 8 in the evening. They are consistent with the prosecution case as they name accused 1 and mentioned two strangers and give in detail the stolen jewels and that P.W. 2 saw what happened. It is extremely unlikely that the village munsif was participating in the concoction of a false case. The evidence for the prosecution of many different people had been consistent throughout that this little girl at once identified accused 1 together with two strangers as the murderers. The real question m this case is whether the identification of P.W. 2 and that of other witnesses to whom reference will be made taken with further evidence relating to dealings with these jewels by the accused, is sufficient as a whole to bring home the guilt for this crime. We accept the position that P.W. 2 reported in the manner she says she reported. We think-there is no ground for supporting that this is a foisted case. It is quite possible that P.W. 3 has confused the statement he made to the Magistrate with the dhava. It must be remembered that at the time he must have been suffering from great mental' distress and his memory may not be accurate. But we think the evidence of the munsif P.W. 13 entirely disposes of a-wholly concocted case. There is no cross-examination addressed to him, a munsif of 23 years standing on which it can be said that he was a party, as he must presumably have been, to such a conspiracy.
7. The criticism that before sending his report he preferred to go to the spot does not, in our view, affect his credibility in any manner whatever. The report of the murder was second hand hearsay and there was nothing unreasonable under the circumstances in his deciding to verify the fact. That P.W. 2 immediately reported that she had seen accused 1 and two strangers murdering the deceased is borne out by P.Ws. 4, 5 and 6. P.W. 2 is the only eyewitness who claims to have witnessed the murder, but other witnesses say they saw accused 1 and two strangers near by at or about the time. Those witnesses are P.Ws. 7, 8, 9 and 10, all villagers of Venkatapuram. They all claim to have seen the accused and two strangers in the neighbourhood of the scene of the crime shortly after about midday. P.W. 7 was in his mango tope. Accused 1 and two strangers, according to him, were going towards Prodattur coming from the west. Nagamma was murdered a little away to the west of this mango tope. At 1 P.M. the witness went home and learnt from P.Ws. 4 and 6 what had happened, whereupon the witness stated that accused 1 and two strangers had been seen by him going towards Prodattur. P.W. 4 was not asked whether P.W. 7 spoke to him and therefore, P.W 7's statement to P.W. 4 should not have been admitted in evidence. This witness also claims to identify the jewels of the deceased. The witness states that he identified the three accused at an identification parade. It may be mentioned that this witness together with the other Venkatapuram witnesses was examined on the morning of the 13th of March. The identification of the accused and of the jewels by this witness was attacked by the defence.
8. As to the jewels, neither by the prosecution nor by the defence was the question as to how he was able to identify the jewels fully investigated. P.W. 8 was looking at his buffaloes in the neighbourhood and he tells the same story. Here again, the inadequacy of the examination-in-chief is apparent. This witness was allowed to give the effect of conversations between him and the villagers on his return, but the villagers were not asked about those conversations. P.W. 9 had gone to plough up the onions in his field. He too states that he saw the accused in Kalamalla Venka shown on the plan. He describes how they were occupied. P.W. 10 says he was grazing goats and actually saw accused 1 and two strangers. The evidence of these witnesses can be dealt with together. On the assumption that they are giving honest evidence, it is difficult to criticize the identification of accused 1 who belonged to the same village, but their identification of accused 2 and 3 is naturally vulnerable because they were strangers. The identification parade was held on 17th March in the morning. The conventional mahazar, Ex. Q was taken and signed by P.Ws. 21 and 22. This identification parade was attacked as identification parades invariably arE.P.W. 21 says that the identifying witnesses had no opportunity to see accused 2 and 3 before identifying them when they were mixed up with about 40 persons. In cross-examination he said that the lock-up doors provided with iron bars had no shutters and that persons inside the lock up can be seen from the verandah. Apparently a number of persons interested in the case had come to Prodattur on the 16th and at that time accused 2 and 3 were in the lock up. The learned Judge on this says:
It is seen from the evidence of P.W. 21 that persons from Venkatapuram had ample opportunities to see accused 2 and 3 in the police lock up. No reliance can therefore be placed on the evidence of the identification.
9. It seems to us that that finding is not wholly justified, and does not accurately represent the evidence of P.W. 21. Is would appear that, if his view is to be accepted, the only look up in which persons intended for identification can be safely put is one without any bars or windows, which would hardly be possible in the climate of Madras. It does not follow that, because the witnesses might have seen the accused; they did in fact see them. However, the learned Judge took the view that the identification of accused 3 was unsatisfactory in the absence of further evidence and acquitted accused 3. Reviewing the evidence so far as it stands, the position is that P.W. 2 claims to have seen the murder and she at once reported it to her aunt. P.Ws. 7 to 10 claim to have seen the accused in the neighbourhood of the scene of murder at about the time of the murder. So far as accused 3 was concerned, that is-all the evidence, and the learned Sessions Judge thought that that evidence was insufficient to convict accused 3. There was however in the case of accused 1 and 2 further evidence. It is obvious that, if that evidence was accepted, the evidence of P.W. 2 must obviously be true and it is probable that the evidence of P.Ws. 7 to 10 was also true although, if they were untruthfully reinforcing the case, it does not follow that the evidence of P.W. 2 is untrue.
10. It will be remembered that two of the jewels missing from the body of the deceased woman were katta kadiyam and bendu kammadu, both of gold. P.W. 18, a. shroff in Prodattur town, says that accused 1 came to his shop at about 3 o'clock on 12th March giving the name of Ganga Reddi and sold the above jewels for which he was paid Rs. 59-1-0 and his thumb impression taken in the account book. Ex. F is the entry in the book and Ex. P-1 is the thumb impression. It is not denied that this thumb impression is that of accused 1. P.W. 18 says he melted the katlu and kadayam but retained the kammalu and that he sold the gold of the katlu and kadayam to one Venkatasami who was not examined. The police four days later came with panchayatdars. Accused 1 pointed out P.W. 18 to the police and at the-request of the police P.W. 18 produced the kammalu, M.Order 2. The date of Ex. F appears at the top of the page above another entry. It is mistakenly written as Sunday, 6th Bahula when it should be Sunday, 7th Bahula. The correct date is the 6th, being 11th of March, but an examination of the account book shows that this mistake is a continuation of the same mistake which has been made earlier in the book and no significance can be attached to it.
11. This witness was vehemently attacked by the defence and the reasons for the attack may best be stated by the accused's answer to his evidence. It is a complete denial that he ever went to the shop. He states that the thumb impression was obtained from him under pressure at the police station by the police who had taken the book of P.W. 18 for the purpose. The kammalu M.Order 2 is stated not to be that of the deceased at all but one bought from D.W. 1, a Prodattur shroff, who said that he him-self sold this jewel to P.W. 18 on the 15th. It is a fact that Ex. 23, P.W. 1's book, shows a sale of bendu kammalu, corresponding precisely in weight to M.Order 2. It must be remembered that M.Order 2 was identified by P.W. 2 because it had a dent caused by a child treading on it. P.W. 3 also identified it. It has in fact got such a dent. It appears, and it is obviously a fact, that the accused made a statement to the police which might well be admissible under Section 27, Evidence Act, and the statement was admitted by the Magistrate. The statement was made in the presence of panchayatdars, but it is obvious that this was not the first statement that had been made. A statement had been made to the police which P.W. 20 had thought it wise to get repeated in the presence of panchayatdars.
12. It is obvious that the statement cannot be complete. It is remotely improbable that the accused said simply, 'I and accused 2and 3 removed the jewels from the person of the deceased' without any sort of initial narrative as to how he came to be where the deceased was, or whether the woman was alive or dead at the time. This is an example of the mutilation of a statement made by the accused person, due apparently to the Circle Inspector supposing that it was his duty to decide what evidence was admissible and what was not. The duty of the police, if they desire to record a statement, is to record it as given and to leave it to the Court to decide what evidence is admissible. In Public Prosecutor v. Subba Reddi (1939) 26 A.I.R. Mad. 15 this Court had condemned the practice of police officers giving not statements made to them in the first instance in evidence but statements made obviously for the second time before panchayatdars. Such statements have been held to be inadmissible. The result of the handling of this statement by the police is that what probably was a simple and admissible statement under Section 27 must, in our opinion, be ruled out entirely for reasons which may be re-stated as follows : (1) that the statement is obviously incomplete and (2) that obviously what was stated by the accused was a repetition of something that he had previously said to a police officer. It is the first statement of the accused to whomsoever made, that leads to the discovery of the fact, if a fact is discovered.
13. The attention of the trial Judge may usefully be directed to the Full Bench decision of this High Court in Athappa Goundau v. Emperor (1937) 24 A.I.R. Mad. 618. Excluding any statement by the first accused, there remains the fact, if true, that he pointed out P.W. 18 to the police and that P.W. 18 stated that on the afternoon of the murder the accused sold to him M.Order 2 said to be the property of the deceased. It is most important to remember, when considering whether this story can be accepted, that on 15th March, the date of Ex. 23, the police had no idea that the first accused was supposed to have sold the kammalu to P.W. 18 because it was not until the next day, the 16th, that he was brought to Prodattur having been arrested at Thumulur and on that day took the police to P.W. 18. It is therefore incredible that the police should be attempting to identify the accused with a jewel procured from D.W. 1 on 15th March when they did not know until the 16th of any connexion between P.W. 18 and the accused. Evidence of this is based largely on the book of D.W. 1 and it is unquestionably remarkable that Kammalu of precisely the same weight as that said to have been taken from the deceased's body is shown to have been sold on the 15th. But it is curious that D.W. 1 was never asked in chief to identify the kammalu at all; he was only asked by the Court. The book of D.W. 1 is not above suspicion. The explanation about the sheet corresponding to Ex. 23 being blank that it was the last day of the financial year is not very convincing. So far as the time of these events is concerned Ex. 23 is the first entry of the day on the 15th and the accused was arrested at 4-30 on that day at Tumulur. The theory of this jewel being foisted must in our opinion be rejected. The question arises, was M.Order 2 the property of the deceased? Its identification by those who are familiar with it, especially of the description of the dent on the side by P.W. 2, seems to us entirely satisfactory. P.W. 3's identification of both M.O. 1 and M.Order 2 was attacked.
14. The defence were driven to such criticisms as that P.W. 3 hesitated in his identification of M.O. 1 in the Magistrate's Court, a circumstance satisfactorily explained by him by the statement that he was much overcome with being confronted by his murdered wife's jewels, because that this woman was murdered there is no doubt. Another criticism was that P.W. 3 said that he did not know where his wife got the kammalu from and that she had told him that she bought it. But these criticisms entirely disappear in the face of the fact that the accused took the police to P.W. 18, that there was a kammalu and that in P.W. 18's books was the thumb impression of the accused and that, as will later be shown, accused 2 revealed where M.O. 1 was hidden. The alternative, accepting those facts, is to suppose that the police by some mysterious manner, having heard that a kammalu was in the possession of P.W. 18, thought fit to invent the story that the accused had taken it there, and having invented it obtained by force a thumb impression of the accused in the book of P.W. 18. If the police had descended to this method surely it may be supposed that they would have ascertained the source of the foisted jewel and arranged that that source should be amenable to their wishes as well.
15. It is impossible for the defence in this case to avoid the argument that, beginning with the villagers and ending with the police, there has been a conspiracy to convict accused 1 of a crime of which at least there is no evidence. The villagers are supposed to have selected him because he had been concerned in a robbery before and therefore he was the likely person to have committed the murder. This is a theory which at least requires consideration, but the learned Counsel for defence has been quite unable to suggest any explanation as to why, having selected accused 1 as the victim, the villagers have elected to complicate what would have been a relatively simple case by attaching to him two unidentified strangers. The only explanation suggested was that, as accused 1 was no more than seventeen, it was safer to associate others with him lest it be said that he was physically incapable alone of murdering the deceased. But why two other men should be introduced has never been explained especially as accused 3 was a Mohamedan. The defence have argued, and rightly argued, that the combination of accused 1, a Reddi, with accused 2, a Hindu of totally different caste and accused 3, a Mohamedan, is remarkable and improbable. It is certainly remarkable; but when considering the hypothesis of a carefully thought out false case the introduction of three such different persons as acting together is equally unlikely. Then, so far as the foisting of the jewels is concerned, why should the police, who could quite easily have 'planted' these jewels on the accused in a simple manner, involve themselves in a much more complicated transaction involving the assistance of a bazar shroff?
15. The evidence against accused 2 consists very largely of his conduct after arrest in relation to a jewel (M.O. 1) identified as the property of the deceased. It is not illogical to say that the evidence of identification by itself might be unreliable, but that, when substantial evidence is added to it, the identification evidence assumes a totally different aspect. When P.Ws. 7 to 10 identified two unknown persons whom they had no particular reason to notice, it is permissible to doubt whether that identification can be trusted, but when those very people are found dealing with the jewels of the murdered person, it is reasonable to hold that they were making no mistake when they picked out the accused as the culprits. Accused 3 has of course been acquitted, but in the case of accused 2 there is evidence of the precise nature which we have indicated. After his arrest accused 2 told P.W. 23, the Sub Inspector, that the kantini gundulu which came to the shares of accused 2 and 3 was concealed by him in the cattle shed of his uncle and that he would show it. Here again his statement is obviously shorn of much of its context, but there is no reason to suppose that any part of a statement made by accused 2 would have assisted the accused's case nor is it suggested that this was the case. Accused 2 thereupon took the police officer and the panchayatdars to his uncle and removed M.O. 1 from under a slab in the cattle shed.
16. We have been asked to say that what might have happened was that, after the murder, accused 2 in some way became possessed of this jewel and no hostile conclusion can be drawn from the statement. But when a man is identified as being one of three persons engaged in a murder and when that person states that a jewel produced by him from a hiding place came to his share, it is, to put it no higher, reasonable to hold that he was concerned in the murder in the absence of any explanation. What explanation has been given by the accused? Accused 1 completely denied the offence and said that he was at a jathra in Kothapallee, Cuddappah taluk, where he had gone to stay in his maternal uncle's house three days prior to the occurrence, that after the jathra he went to Tummulur to his relation's house where he was arrested, and that his revelation of P.W. 18 and his thumb impression in the witness's book were induced by police coercion. If that is so, he could have called witnesses to establish an impregnable alibi, but no witnesses were called from his maternal uncle's house to say that he was at Kothapallee three days before the murder or from the other relation's house in Tummulur to say that he was there on the day of the murder itself. As to accused 2, he denies entirely that he ever produced the jewel at all or that he even knows (Muganna) Mugavadu at whose house the kantini gundulu was alleged to have been recovered. Here again we see, according to accused 2, that the police chose for the scene of foisting this jewel on accused 2 the house of a stranger. With regard to this jewel it is true that it is of a sort commonly worn by women, but there is nothing in the evidence of identification to suppose that it was not the property of the deceased. In the case of accused 2 we are invited to say that the whole of the evidence against him is false. This is a remarkable case because of the difference in caste and creed of the three accused and we have already noticed the curious fact that the book entry of D.W. 1 purports to deal with a jewel identical with M.Order 2. But in spite of these matters we are satisfied that the inferences of guilt to be drawn from the evidence are overwhelming and we reject entirely the theory that the charge arising from this combination of facts owes its inception to the hasty - for it must have been hasty - agreement among the villagers of Venkatapuram and that the police gladly and enthusiastically co-operated from the moment the matter came into their hands. The learned Sessions Judge was satisfied and we are satisfied that the evidence brought home beyond all reasonable doubt the guilt of this murder to accused 1 and 2. We therefore confirm the convictions. With regard to the sentence, accused 2 is 25 years old and accused 1 is stated to be 17, although before the Court of Session his age was given as 19. In the case of accused 1, as we have frequently had occasion to remark before, youth by itself is not a reason why the Court should evade its duty of sentencing the accused to death especially in the case of a cruel murder, such as this. We think that the sentences of death were rightly passed and we confirm them. The appeals of the accused are dismissed.